Citizenship Policy Document June 2016 role of Citizenship Policy is to support the Australian...

Citizenship Policy

Citizenship Policy, DIBP

1 June 2016

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Citizenship Policy

Introduction to Citizenship Policy

Citizenship Policy

The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.

Latest changes

Legislative - 4 November 2014

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 inserted a definition of bogus documents into s3 of the Act and new provisions relating to bogus documents were inserted into Part 3, Division 1 of the Act, as s45A, s45B, s45C and s45D. All came into effect on 4 November 2014, and the s3 definition was amended from 18 April 2015. For guidance regarding the definition of bogus documents inserted into s3 of the Act, refer to Chapter 3 - Definitions. For guidance regarding the bogus document provisions set out in s45A, s45B, s45C and s45D, refer to Chapter 15 - Bogus documents.

Legislative - 12 December 2015

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 amended Part 2, Division 3 of the Act, to expand the basis on which the Australian citizenship of a dual citizen will cease if the person acts inconsistently with his or her allegiance to Australia, and amend the pre-existing Part 2, Division 3 provisions accordingly. Refer to Chapter 9 - Cessation of Australian citizenship.

Policy

Citizenship Policy, which is part of the centralised departmental instructions system (CDIS), replaces the policy guidance previously provided in the form of the Australian Citizenship Instructions (the ACIs), which were last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.

The structure of the Citizenship Policy differs from that used in the ACIs and additional policy clarification and updated policy guidance has been provided throughout. It has been developed to comply with the Web Content Accessibility Guidelines (WCAG) 2.0 requirements.

From 1 June 2016, the ACIs detail the citizenship operational instructions.

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Citizenship Policy Section

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Contents summary

Chapter 1 - Australian citizenship overview ................................................................................ 15

Australian citizenship overview .............................................................................................. 15 Purpose of Australian citizenship ............................................................................................ 15 Responsibilities and privileges of citizenship ........................................................................... 15 Ways to acquire and lose citizenship ...................................................................................... 15

Acquisition of citizenship .................................................................................................... 15 Loss of citizenship ............................................................................................................... 16

Chapter 2 - Citizenship legislative framework.............................................................................. 18

Overview of citizenship legislative framework ........................................................................ 18 Citizenship legislative framework ........................................................................................... 18

Citizenship legislation from 1 July 2007 ............................................................................... 18 Citizenship legislation immediately prior to 1 July 2007 ....................................................... 19 Citizenship legislation on 26 January 1949 ........................................................................... 19 Prior to 26 January 1949 ..................................................................................................... 19

The Act .................................................................................................................................. 19 The Act - Preamble ............................................................................................................. 19 The Act - Short title (s1) ...................................................................................................... 19 The Act - Commencement (s2) ............................................................................................ 19 The Act - Simplified outlines................................................................................................ 20 Offences and prosecutions under the Act ............................................................................ 20 Offences under the old Act ................................................................................................. 22

Chapter 3 - Definitions used for citizenship ................................................................................. 23

Overview of definitions used for citizenship............................................................................ 23 Definitions ............................................................................................................................. 23 Administrative error .............................................................................................................. 27 Australia and the external territories ...................................................................................... 28 Ordinarily resident ................................................................................................................. 29

Ordinarily resident - considerations .................................................................................... 29 Absences during the period being considered ...................................................................... 29 Children born to foreign diplomats - generally not ordinarily resident .................................. 30

Permanent resident for citizenship ......................................................................................... 30 Definition of permanent resident ........................................................................................ 31 Permanent resident under the old Act ................................................................................ 31 Permanent resident for conferral ........................................................................................ 32 Permanent residence and British nationality ....................................................................... 32 New Zealand citizens as permanent residents ..................................................................... 33

Significant hardship or disadvantage / detriment .................................................................... 33 Personal needs and personal wants .................................................................................... 33 For conferral ....................................................................................................................... 34

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For resumption ................................................................................................................... 34

Chapter 4 - Automatic acquisition of citizenship .......................................................................... 36

Overview to chapter .............................................................................................................. 36 Overview of automatic acquisition provisions ......................................................................... 36

Day citizenship begins ......................................................................................................... 37 Automatic citizenship can be lost ........................................................................................... 37 Citizenship by birth - overview ............................................................................................... 37 Citizenship by birth at time of birth (s12(1)(a)) ........................................................................ 37

Person’s place of birth ........................................................................................................ 38 Status of the person’s parent .............................................................................................. 38

Citizenship by birth on 10th birthday (s12(1)(b)) ...................................................................... 39 Child born to foreign diplomats ........................................................................................... 39

Historical provisions - Birth in Australia .................................................................................. 40 20 August 1986 to the present ............................................................................................ 40 22 November 1984 to 19 August 1986 inclusive ................................................................... 40 6 May 1966 to 21 November 1984 inclusive ......................................................................... 40 26 January 1949 to 5 May 1966 inclusive ............................................................................. 41 Before 26 January 1949....................................................................................................... 41 Transitional arrangements on 26 January 1949 .................................................................... 41

Children born to foreign diplomats - citizenship by birth ......................................................... 41 Diplomat parents prior to 26 January 1949 .......................................................................... 41 Diplomat parents from 26 January 1949 to 24 November 1952 ............................................ 41 Diplomat parents from 25 November 1952 to present ......................................................... 42

Citizenship by adoption (s13).................................................................................................. 42 Citizenship for abandoned children (s14) ................................................................................ 42 Citizenship by incorporation of territory (s15) ......................................................................... 42

Chapter 5 - Citizenship by descent .............................................................................................. 44

Overview of descent .............................................................................................................. 44 Registration (s18) ............................................................................................................... 44 Day citizenship begins (s19) ................................................................................................ 44 Not a citizen despite approval (s19A) .................................................................................. 44 Extract certificates - Descent ............................................................................................... 45

Eligibility for descent under the Act ........................................................................................ 45 Born on or after 26 January 1949 (s16(2)) ............................................................................ 45 Born before 26 January 1949 (s16(3)) .................................................................................. 45

Eligibility considerations for descent in the Act ....................................................................... 46 Person’s place of birth ........................................................................................................ 46 Parent for citizenship purposes ........................................................................................... 47 Status of the person’s parent .............................................................................................. 47 Character - descent applicants aged 18 and over ................................................................. 48

Citizenship by descent under the old Act ................................................................................ 48 Born on or after 26 January 1949 - old Act ........................................................................... 48

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Born before 26 January 1949 - old Act ................................................................................. 50 Prohibitions - Minister’s decision (s17) ................................................................................... 50

Identity (s17(3)) .................................................................................................................. 50 National security (s17(4) to s17(4B)) .................................................................................... 50 Cessation of citizenship (s17(5)) .......................................................................................... 50

Application requirements - descent ........................................................................................ 51 Fees for descent applicants ................................................................................................. 51

Decision making - descent (s17) .............................................................................................. 51 Must approve or refuse (s17(1)) .......................................................................................... 51 Must not approve if not eligible (s17(1A)) ........................................................................... 51 Must refuse if a prohibition is in place (s17(3) to s17(5)) ...................................................... 51

Notification of decisions (s47) - descent .................................................................................. 51 Review of decisions (s52) - descent ......................................................................................... 52

Chapter 6 - Adopted children...................................................................................................... 53

Overview of adoption pathways to citizenship ........................................................................ 53 Summary of types of adoption ............................................................................................... 53

Simple Hague or bilateral adoptions finalised onshore ........................................................ 53 Full Hague Convention or bilateral arrangement adoptions ................................................. 54 Expatriate adoptions .......................................................................................................... 54 Domestic Adoptions ........................................................................................................... 55

Guardianship of adopted child (until citizenship or other significant event) ............................. 55 Citizenship by adoption in Australia (s13) ............................................................................... 55

How to obtain evidence of citizenship ................................................................................. 56 Adoptions - Hague Convention or bilateral arrangement (s19C) .............................................. 56

Overview of Subdivision AA - citizenship by full Hague or bilateral adoption ........................ 57 Adoptions other than Full Hague Convention adoptions ...................................................... 58 Citizenship eligibility - full Hague Convention or bilateral arrangement adoption (s19C) ....... 59 Prohibitions - Minister’s decision (s19D) .............................................................................. 61 Application requirements - s19C adoption ........................................................................... 62 Decision making - s19C adoption (s19D) .............................................................................. 62 Notification of decision (s47) - s19C adoption ...................................................................... 63 Review of decisions (s52) - s19C adoption ........................................................................... 63

Citizenship by conferral for adopted persons .......................................................................... 63

Chapter 7 - Citizenship by conferral ............................................................................................ 64

Overview of conferral ............................................................................................................ 64 Requirements for becoming a citizen (s20) .......................................................................... 64 Day citizenship begins (s28) ................................................................................................ 65

Eligibility for conferral ............................................................................................................ 65 General eligibility (s21(2)) ...................................................................................................... 65 Permanent resident for conferral ........................................................................................... 66

Current PR requirements for conferral ................................................................................ 66 Permanent resident requirements under s21(5) .................................................................. 67

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When permanent resident visa ceases prior to decision ....................................................... 67 Residence requirement .......................................................................................................... 69 Knowledge of English language .............................................................................................. 69 Knowledge of Australia and the citizenship responsibilities and privileges ............................... 69 Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f) ................................................................ 69 Likely to reside / close and continuing association .................................................................. 69

Likely to reside, or continue to reside in Australia................................................................ 70 Maintain a close and continuing association with Australia ................................................. 70

Good character ...................................................................................................................... 71 Overseas penal certificates - conferral ................................................................................. 71 Interaction with the offence prohibition ............................................................................. 71

Permanent or enduring physical or mental incapacity (s21(3)) ................................................ 71 Physical incapacity .............................................................................................................. 72 Mental incapacity ............................................................................................................... 72 General Practitioners .......................................................................................................... 73

Person aged 60 or over (s21(4)(i)) ........................................................................................... 73 Interviews for people aged 60 and over............................................................................... 74

Person with hearing, speech or sight impairment (s21(4)(a)(ii)) ............................................... 74 Applicants aged under 18.................................................................................................... 74 Evidence of permanent loss or substantial impairment to hearing, speech or sight ............... 75

Person aged under 18 years (s21(5)) ....................................................................................... 75 When was application received ........................................................................................... 75 Best interests of the child ................................................................................................... 75

Applicants under the age of 16 (s21(5)) ................................................................................... 75 Children under 16 applying individually in their own right ................................................... 76 Children under 16 applying on the same form and at the same time as a responsible parent 76

Applicants aged 16 or 17 (s21(5)) ............................................................................................ 77 IGOC minors (s21(5)) .............................................................................................................. 77

Who may apply on behalf of an IGOC Minor ........................................................................ 78 Non-IGOC minors (s21(5)) ...................................................................................................... 78

Who may apply on behalf of a non-IGOC Minor ................................................................... 78 Person born to former Australian citizen (s21(6)) .................................................................... 78

Born outside Australia ........................................................................................................ 79 Parent’s loss of citizenship .................................................................................................. 79 Person born in Papua New Guinea (PNG) ............................................................................ 79

Person born in Papua (s21(7))................................................................................................. 80 Statelessness (s21(8)) ............................................................................................................. 80 British and Maltese former child migrants .............................................................................. 80 Prohibitions - Minister’s decision (s24) ................................................................................... 80

Identity (s24(3)) .................................................................................................................. 81 National security (s24(4) to s24(4D)) ................................................................................... 81 If the applicant is not in Australia at the time an application is approved (s24(5)) ................. 81

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Offences (s24(6)) ................................................................................................................ 82 Cessation of citizenship (s24(7)) .......................................................................................... 85

Application requirements (s21, s46) ....................................................................................... 85 Approved forms - conferral ................................................................................................. 85 Fees for conferral applicants ............................................................................................... 85

Decision making - conferral (s24) ............................................................................................ 86 Must approve or refuse (s24(1)) .......................................................................................... 86 Included applicants - conferral ............................................................................................ 86 Must not approve if not eligible (s24(1A)) ........................................................................... 86 May refuse to approve an eligible person (s24(2)) ............................................................... 86 Must not be approved if a prohibition is in place (s24(3) to s24(8)) ...................................... 86 Deferral of decision not possible ......................................................................................... 87 Minister may cancel approval (s25) ..................................................................................... 87

Decision records .................................................................................................................... 87 Notification of decisions (s47) ................................................................................................ 87 Review of decisions (s52) ....................................................................................................... 87

Chapter 7A - Residence Requirement.......................................................................................... 89

Who has to meet the residence requirement .......................................................................... 89 The different residence requirements ..................................................................................... 89 Which residence requirement applies ..................................................................................... 89 Exemptions and discretions to the residence requirements ..................................................... 90 Residence requirements in the old Act ................................................................................... 90 General residence requirement (s22) ...................................................................................... 90

Transitional Act arrangements ............................................................................................ 91 Presence in Australia .......................................................................................................... 91 Overseas absences (s22(1A) and s22(1B)) ............................................................................ 91 Confinement in prison or psychiatric institution (s22(1C)) .................................................... 91 People working on ships or aircraft ..................................................................................... 92 If absent from Australia on the day four years immediately before applying ........................ 92 Calculations for New Zealand citizens .................................................................................. 92

Partial exemption to the general residence requirement (s22(2)) ............................................ 93 Discretions to the general residence requirement ................................................................... 93

Ministerial discretion - Confinement in prison or psychiatric institution (s22(5A)) ................ 93 Ministerial discretion - Administrative error (s22(4A) and s22(5)) ........................................ 94 Ministerial discretion - Significant hardship or disadvantage (s22(6)) ................................... 94 Ministerial discretion - Spouses and de facto partners (s22(9) and s22(10)) .......................... 95 Ministerial discretion - Interdependent relationships (s22(11)) ............................................ 97

Special residence requirements (s22A and s22B) ..................................................................... 98 Special residence requirement - activities of benefit to Australia (s22A) .................................. 98 Discretions to the s22A special residence requirement ............................................................ 99

Ministerial discretion - Alternative residence requirements (s22A(1A)) ................................ 99

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Ministerial discretion - Confinement in prison or psychiatric institution (s22A(2) and s22A(3)) ........................................................................................................................................ 100 Ministerial discretion - Administrative error (s22A(4) and s22A(5)) .................................... 100

Special residence requirement - work requiring regular travel outside Australia (s22B) .......... 100 Discretions to the s22B special residence requirement .......................................................... 101

Ministerial discretion - Alternative residence requirements (s22B(1A)) .............................. 101 Ministerial discretion - Confinement in prison or psychiatric institution (s22B(2) and s22B(3)) ........................................................................................................................................ 102 Ministerial discretion - Administrative error (s22B(4) and s22B(5)) ..................................... 102

Defence Service Requirement (s23) ...................................................................................... 102 Relevant defence service .................................................................................................. 103 Service that is not relevant defence service ....................................................................... 103 Evidence of relevant defence service ................................................................................. 103 Member of the family unit of person who has completed relevant defence service ............ 103 Identity declaration requirements ..................................................................................... 104 Fees for people who meet the defence service requirement .............................................. 105

Chapter 7B - Citizenship test ..................................................................................................... 106

Overview of the citizenship test ........................................................................................... 106 Background to the citizenship test ........................................................................................ 106

Amendments to the test from 2009 .................................................................................. 106 Citizenship test legal criteria (s21(2A)) .................................................................................. 107 The Minister’s determination (s23A) .................................................................................... 107 Test/s approved under s23A ................................................................................................. 107

Standard Test ................................................................................................................... 108 Assisted Test .................................................................................................................... 108 Course-based Test ............................................................................................................ 108

Eligibility to sit a test ............................................................................................................ 109 Who may administer a test .................................................................................................. 109

Chapter 7C - Pledge of commitment and Ceremonies ................................................................ 110

Overview of chapter ............................................................................................................ 110 Pledge of commitment - overview ........................................................................................ 110

Pledge of commitment must be made (s26)....................................................................... 111 Arrangements for making the pledge of commitment ........................................................ 111 Delayed making of pledge (s26(3) to s26(6)) ...................................................................... 111 Pledge made before approval ........................................................................................... 112 Approval may be cancelled if pledge not made (s25(3)) ..................................................... 112 Prescribed reasons for failing to make pledge.................................................................... 112

Citizenship ceremonies - overview ........................................................................................ 112 Australian Citizenship Ceremonies Code ............................................................................ 113 Urgent or private ceremonies ........................................................................................... 113

Authorisation to receive the pledge of commitment ............................................................. 113 Standing authorisations .................................................................................................... 114

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Ceremony specific authorisations ...................................................................................... 114 Preamble for citizenship ceremonies ................................................................................. 114

Conferee fails to make the pledge ........................................................................................ 114 Pledge cards and translations of the pledge .......................................................................... 114 Pledge verification lists ........................................................................................................ 115 Disclosing details of new citizens .......................................................................................... 115 Australian citizenship affirmation ceremonies ...................................................................... 116

Chapter 8 - Resuming citizenship .............................................................................................. 117

Overview of resumption ....................................................................................................... 117 Registration (s31) ............................................................................................................. 117 Day citizenship begins again (s32(1)) ................................................................................. 117 Same kind of citizenship (s32(2) to s32(3)) ......................................................................... 118

Eligibility to resume citizenship (s29) .................................................................................... 118 No resumption option for certain persons (s36A) .............................................................. 118 Person born in Papua ........................................................................................................ 118

Prohibitions - Minister’s decision (s30) ................................................................................. 119 Identity (s30(3)) ................................................................................................................ 119 National security (s30(4) to s30(7)) .................................................................................... 119

Application requirements - resuming .................................................................................... 119 Approved forms - resuming............................................................................................... 119 Fees for resumption applicants ......................................................................................... 120

Decision making - resuming (s30) ......................................................................................... 120 Must approve or refuse (30(1)) ......................................................................................... 120 Included applicants - resuming .......................................................................................... 120 Must not approve if not eligible (s30(1A)) ......................................................................... 120 May refuse to approve an eligible person (s30(2)) ............................................................. 120 Must refuse if a prohibition is in place (s30(3) to s30(7)) .................................................... 121

Decision records .................................................................................................................. 121 Notification of decision (s47) ................................................................................................ 121 Review of decisions (s52) ..................................................................................................... 121

Chapter 9 - Cessation of Australian citizenship .......................................................................... 122

Overview to chapter ............................................................................................................ 122 Part 2, Division 3 of Act - overview ....................................................................................... 122

People who acquired citizenship by descent under the old Act .......................................... 123 Renunciation by application (s33) ......................................................................................... 123

Time citizenship ceases (s33(8)) ........................................................................................ 124 Application requirements - renunciation by application ..................................................... 124 Decision making - renunciation by application (s33) .......................................................... 124 Decision records ............................................................................................................... 125 Notification of decision (s47) ............................................................................................ 125 Review of decisions (s52) .................................................................................................. 125

Renunciation by conduct (s33AA) ......................................................................................... 125

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Minister to give notice (s33AA(10) to s33AA(12)) ............................................................... 126 Minister’s power to rescind notice and exempt person (s33AA(13) to s33AA(19)) .............. 126 General provisions relating to Minister’s powers (s33AA(20) to s33AA(24)) ........................ 127

Enemy country service or a declared terrorist organisation (s35, s35AA, s35AB) .................... 128 Minister to give notice (s35(5) to s35(7)) ........................................................................... 128 Minister’s power to rescind notice and exempt person (s35(8) to s35(14)) ......................... 129 General provisions relating to Minister’s powers (s35(15) to s35(19)) ................................ 130 Declared terrorist organisation (s35AA) ............................................................................. 130

Conviction for terrorism and related offences (s35A) ............................................................ 130 Minister to give notice (s35A(5) to s35A(7)) ....................................................................... 131 Minister must revoke determination if conviction overturned (s35A(8) to s35A(9)) ............ 131 General provisions relating to Minister’s powers (s35A(10) to s35A(13)) ............................ 131

Revocation by Minister (s34 and s34A) ................................................................................. 132 Children of responsible parents who cease to be citizens (s36) .............................................. 132 Historical cessation provisions .............................................................................................. 132

Renunciation under old Act ............................................................................................... 132 Section 17 - repealed on 4 April 2002 ................................................................................ 133 Section 20 - repealed on 8 October 1958 ........................................................................... 134 Section 23 - Child whose responsible parent ceased citizenship ......................................... 134 Burma - 4 January 1948 .................................................................................................... 135 PNG Independence - 16 September 1975 ........................................................................... 135

Chapter 10 - Evidence of Australian citizenship ......................................................................... 137

Overview of evidence ........................................................................................................... 137 Extract certificates ............................................................................................................ 137

Information contained on an evidentiary notice ................................................................... 138 Applications for evidence of Australian citizenship (s37) ....................................................... 138

Establishing Australian Citizenship status .......................................................................... 139 Must be satisfied of identity ............................................................................................. 139 Certain evidence applicants - things to note ...................................................................... 139 Decision making - evidence (s37) ....................................................................................... 141 Application requirements - evidence ................................................................................. 141 Internal review of a decision to refuse evidence ................................................................ 141

Confirmation of Australian citizenship status for deceased persons ....................................... 142 Cancellation and Surrender of Notices .................................................................................. 142

Cancellation of evidentiary notice (s37(6))......................................................................... 142 Surrender of evidentiary notice (s38) ................................................................................ 143

Altering evidentiary notice (s39) ........................................................................................... 143

Chapter 11 - Character ............................................................................................................. 144

Overview of chapter ............................................................................................................ 144 When is good character considered ...................................................................................... 144 What is good character ........................................................................................................ 145

Definition of good character ............................................................................................. 145

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Community standards ....................................................................................................... 146 Australian values statement ............................................................................................. 146 Characteristics of good character ...................................................................................... 147

s24(6) offence refusals and good character ........................................................................... 148 Relationship between citizenship and migration legislation .................................................. 148 Framework for making ‘good character’ decisions................................................................. 149

Factors to not take into account ........................................................................................ 149 Weighing up the character decision .................................................................................. 149 Waiting for further information ........................................................................................ 150 Criminal / police checks .................................................................................................... 150 Quashed, pardoned and spent convictions ........................................................................ 153 War crimes, crimes against humanity and/or genocide ...................................................... 153 References ....................................................................................................................... 155

Procedural fairness / natural justice ..................................................................................... 155 Recording the decision ......................................................................................................... 156 Issues after decision and before pledge ................................................................................ 156

Chapter 12 - National security .................................................................................................. 157

Overview to chapter ............................................................................................................ 157 Definitions relating to national security ................................................................................ 157

Chapter 13 - Identity ................................................................................................................ 158

Overview of the identity provisions ...................................................................................... 158 Concept of identity .............................................................................................................. 158

Identity assessment .......................................................................................................... 158 Name to be used .................................................................................................................. 159

Indigenous Australians, birth not registered ...................................................................... 159 Single name only .............................................................................................................. 159 International naming conventions ..................................................................................... 160

Changes to name or other identity information .................................................................... 160 Change of name ............................................................................................................... 162 Changes to date of birth ................................................................................................... 162 Change of sex and/or gender ............................................................................................ 162

Citizenship and the FOI Act ................................................................................................... 163

Chapter 14 - Personal identifiers............................................................................................... 164

Overview of personal identifiers ........................................................................................... 164 Personal identifiers and identity ....................................................................................... 164 Offences under the Act ..................................................................................................... 164

What are personal identifiers ............................................................................................... 165 Definitions relating to the personal identifier provisions ....................................................... 165 Personal identifiers under the Act (s10) ................................................................................ 165

Fingerprints or handprints of a person .............................................................................. 165 Measurement of a person’s height and weight .................................................................. 166

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Photograph or other image of a person’s face and shoulders ............................................. 166 Iris scan ............................................................................................................................ 166 Person’s signature ............................................................................................................ 166 Any other identifier prescribed by the regulations ............................................................. 166

Obtaining personal identifiers .............................................................................................. 166 Request for personal identifiers (s40) ................................................................................ 166 Provision of personal identifier (s41) ................................................................................. 166

Obligations relating to identifying information ..................................................................... 167 Accessing identifying information (s42) ................................................................................ 167

Offences and Penalties ..................................................................................................... 167 Authorised access - offence provisions do not apply .......................................................... 168 Access authorised by the Minister ..................................................................................... 168 Serious and imminent threat to life or health .................................................................... 168

Disclosing identifying information (s43) ................................................................................ 169 Personal Identifiers collected prior to 17 September 2009 ................................................. 169 Offences and penalties ..................................................................................................... 169 Permitted disclosure ......................................................................................................... 169

Unauthorised modification or impairment of identifying information (s44) ........................... 170 Modification ..................................................................................................................... 171 Impairment ...................................................................................................................... 171 Offences and penalties ..................................................................................................... 171

Destroying identifying information (s45)............................................................................... 172 Offences and penalties ..................................................................................................... 172 Retention and storage of identifying information .............................................................. 173

Chapter 15 - Bogus documents ................................................................................................. 174

Overview of bogus document provisions .............................................................................. 174 Purpose of the provisions ..................................................................................................... 174 Seizure of documents ........................................................................................................... 174 Delegated powers ................................................................................................................ 175

Chapter 16 - Application requirements and valid applications ................................................... 176

Overview of chapter ............................................................................................................ 176 Application requirements under s46 of the Act ..................................................................... 176 Section 46 requirements ...................................................................................................... 176

On the relevant approved form ......................................................................................... 177 Information required by the form (s46(1)(b)) ..................................................................... 178 Who may sign a citizenship application form ..................................................................... 182 Additional information requirements to complete or support an application ..................... 182 Information / documents prescribed by the Regulations (s46(1)(c)) ................................... 183 Application fees (s46(1)(d)) ............................................................................................... 183

Invalid applications .............................................................................................................. 185

Chapter 17 - Decision making and review ................................................................................. 186

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Overview of chapter ............................................................................................................ 186 Delegations.......................................................................................................................... 186 Application date .................................................................................................................. 186 Powers and requirements .................................................................................................... 187

Prohibitions to approval ................................................................................................... 187 Included applicants ........................................................................................................... 188 Deferral of decision not possible ....................................................................................... 188 When there is a decision bar ............................................................................................. 188

General principles of decision making ................................................................................... 188 Assessing the evidence ..................................................................................................... 189 Procedural fairness / natural justice .................................................................................. 190 Jurisdictional error............................................................................................................ 193

Notifications and notification periods ................................................................................... 193 Notification of decisions ................................................................................................... 194 Decisions made under s35A .............................................................................................. 194 Notification of review rights ............................................................................................. 194 When notification is taken to have been received ............................................................. 194

Nominated representatives .................................................................................................. 195 Decision records .................................................................................................................. 196 Record keeping .................................................................................................................... 197 Review of decisions and findings .......................................................................................... 197

Review of decisions .......................................................................................................... 197 Review of findings ............................................................................................................ 197

Recording incidents of fraud in citizenship applications ......................................................... 198

Chapter 18 - New Zealand citizens in Australia .......................................................................... 199

Overview of New Zealand arrangements .............................................................................. 199 Status of New Zealand citizens in Australia ........................................................................... 199

26 January 1973 to 31 August 1994 ................................................................................... 199 1 September 1994 to 26 February 2001 ............................................................................. 200 Transitional provisions - Outside Australia on 26 February 2001 ........................................ 201 27 February 2001 to present ............................................................................................. 201 PR pathway for New Zealand citizens from 1 July 2017 ...................................................... 202

Permanent resident status of New Zealand citizens .............................................................. 202 If a special category visa is granted to a permanent resident in error ................................. 203 Centrelink certificates ....................................................................................................... 203

Children born in Australia to New Zealand citizen parents ..................................................... 204 Person born 26 January 1949 to 19 August 1986 ................................................................ 204 Person born 20 August 1986 to 31 August 1994 ................................................................. 205 Person born 1 September 1994 to 26 February 2001 .......................................................... 205 Person born 27 February 2001 to the present .................................................................... 206 Automatic acquisition of citizenship on 10th birthday ....................................................... 207

Character requirements for New Zealand citizens applying for citizenship by conferral .......... 207

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Chapter 19 - Papua, New Guinea, and Papua New Guinea ......................................................... 208

Overview of Papua, New Guinea, and Papua New Guinea ..................................................... 208 Prior to Independence.......................................................................................................... 208

Papua prior to Independence ............................................................................................ 208 New Guinea prior to Independence ................................................................................... 208

From Independence Day, 16 September 1975 ....................................................................... 209 Citizenship by descent .......................................................................................................... 210 Citizenship by conferral ........................................................................................................ 210 Cessation of citizenship under the old Act ............................................................................. 210 Cessation of citizenship under PNG legislation ...................................................................... 210 Evidence of citizenship ......................................................................................................... 210

Chapter 20 - Parents and Parent-Child Relationships ................................................................. 212

Introduction to chapter ........................................................................................................ 212 Meaning of ‘parent’ for citizenship purposes ........................................................................ 213

Relevance of foreign law ................................................................................................... 213 Parent-child relationship fraud ............................................................................................. 213 Biological parent-child relationships ..................................................................................... 214

DNA testing ...................................................................................................................... 214 Non-biological parent-child relationships .............................................................................. 214

Factors to be taken into account ....................................................................................... 215 Artificial conception ............................................................................................................. 215

Artificial conception procedures - legislative framework .................................................... 216 Application of s8 of the Act ............................................................................................... 216 Artificial conception procedures (not surrogacy)................................................................ 216

Surrogacy ............................................................................................................................ 217 Surrogacy and Australian legislation .................................................................................. 217

Chapter 21 - Responsible parent ............................................................................................... 219

Responsible parent overview ............................................................................................... 219 Who is a ‘responsible parent’ ............................................................................................... 219

The person is a parent of the child .................................................................................... 219 Parenting order - child is to live with the person ................................................................ 220 Parenting order - parental responsibility for the child ........................................................ 220 Guardianship or custody of the child under law ................................................................. 220

Application requirements - responsible parent’s consent ...................................................... 221 Applicants aged under 16.................................................................................................. 221 Applicants aged 16 and 17 ................................................................................................ 221 Children born through an international surrogacy arrangement ......................................... 221

Disputes between responsible parents ................................................................................. 222 Application validity ........................................................................................................... 222 Withdrawal of application ................................................................................................ 222 Notification requirements ................................................................................................. 222

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Chapter 22 - Best interests of the child ..................................................................................... 223

Overview of chapter ............................................................................................................ 223 The status of international conventions in Australian law .................................................. 223 The Convention on the Rights of the Child ......................................................................... 223

When to assess the best interests of the child ....................................................................... 223 What are the best interests of the child ................................................................................ 225

Definition of best interest of the child ............................................................................... 225 Weighing the best interests of the child against other matters ........................................... 225

Recording the assessment .................................................................................................... 226 Further information ............................................................................................................. 226

Chapter 23 - British subjects ..................................................................................................... 227

Overview to chapter ............................................................................................................ 227 British subject status prior to 26 January 1949 ...................................................................... 227

British subject through birth or descent ............................................................................ 227 British subject by naturalisation ........................................................................................ 228 British subject by marriage ............................................................................................... 229 British subject by annexation of a territory ........................................................................ 229 Loss of British subject status ............................................................................................. 229

British subject status from 26 January 1949 .......................................................................... 229 Marriage and women’s status as British subjects .................................................................. 230 Burma ................................................................................................................................. 230 Ireland ................................................................................................................................. 231 South Africa and Pakistan ..................................................................................................... 232

Chapter 24 - Historical transitional provisions ........................................................................... 233

Overview of the transitional arrangements on 26 January 1949 ............................................ 233 Acquisition by birth, naturalisation or ordinarily resident period ........................................... 233 Acquisition by descent ......................................................................................................... 234

Born to a father who acquired on 26 January 1949 ............................................................ 234 Born to a mother who acquired on 26 January 1949 .......................................................... 234

British subject woman who did not otherwise acquire .......................................................... 234

Chapter 25 - External Territories of Australia ............................................................................ 235

Christmas Island ................................................................................................................... 235 Residents of Christmas Island on 1 October 1958 ............................................................... 235

Cocos (Keeling) Islands ......................................................................................................... 235 Children born in Cocos (Keeling) Islands ............................................................................ 236 Historical provisions in relation to residents of Cocos (Keeling) Islands on 23 November 1955 ........................................................................................................................................ 236

Norfolk Island ...................................................................................................................... 236 Children born in Norfolk Island ......................................................................................... 237

Papua - former Australian territory....................................................................................... 237

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Chapter 1 - Australian citizenship overview

Australian citizenship overview The Australian Citizenship Act 2007 (the Act), defines who is, who can become, and who ceases to be an Australian citizen. Refer to Chapter 2 - Citizenship legislative framework.

Australian citizenship comes with responsibilities such as the requirement to uphold Australian laws, and privileges such as the right to vote and seek parliamentary election. Refer to Responsibilities and privileges of citizenship.

Purpose of Australian citizenship Citizenship is a cornerstone of Australia’s inclusive and pluralist democracy.

Australian citizenship is the unifying bond for all Australians and is fundamental to a cohesive, multicultural society with shared rights and responsibilities. It is also an important step in a migrant’s journey to becoming a full member of the Australian community.

Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

Responsibilities and privileges of citizenship Most of the responsibilities and privileges of Australian citizenship are set out in various Australian acts other than the Act.

For information about the responsibilities and privileges of Australian citizenship, see the department’s website (http://www.border.gov.au/Trav/Citi/Why-).

Ways to acquire and lose citizenship Refer to:

Acquisition of citizenship

Loss of citizenship.

Acquisition of citizenship

Australian citizenship can be acquired automatically or by application. Refer to:

Automatic acquisition pathways

Application acquisition pathways.

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Automatic acquisition pathways

Most people who acquire Australian citizenship do so automatically. Operation of law criteria for the automatic acquisition of citizenship are set out in Part 2, Division 1 - Automatic acquisition of Australian citizenship of the Act, for:

birth in Australia (s12), refer to Citizenship by birth - overview

adoption in Australia (s13), refer to Citizenship by adoption (s13)

abandonment as a child (s14), refer to Citizenship for abandoned children (s14)

incorporation of a Territory (s15), refer to Citizenship by incorporation of territory (s15) or

through historical transitional arrangements that were put in place when the first Australian citizenship laws came into effect on 26 January 1949, refer to Chapter 24 - Historical transitional provisions.

Application acquisition pathways

Australian citizenship can be acquired by application, as set out in Part 2, Division 2 - Acquisition of Australian citizenship application of the Act:

descent (s16), refer to Chapter 5 - Citizenship by descent

adoptions done in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement (s19C), refer to Chapter 6 - Adopted children

conferral (s21), refer to Chapter 7 - Citizenship by conferral

resumption of citizenship (s29), Chapter 8 - Resuming citizenship.

The acquisition pathways under the old Act differed. For information regarding acquisition under the old Act refer to relevant content in this document and/or the legislation and policy that was in place at that time.

Loss of citizenship

Australian citizenship, once acquired, can be lost through a variety of provisions set out in Part 2, Division 3 - Cessation of Australian citizenship of the Act. Refer to Chapter 9 - Cessation of Australian citizenship.

A person may cease to be an Australian citizen by:

renouncing their citizenship (s33) - refer to Renunciation by application (s33)

engaging in certain terrorist or other related conduct (s33AA) - refer to Renunciation by conduct (s33AA)

as a result of the Minister revoking their citizenship (s34 and s34A) - refer to Revocation by Minister (s34 and s34A)

by fighting for, or being in the service of, a declared terrorist organisation overseas (s35) - refer to Enemy country service or a declared terrorist organisation (s35, s35AA, s35AB)

by serving in the forces of a country at war with Australia (s35) - refer to Enemy country service or a declared terrorist organisation (s35, s35AA, s35AB)

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by being convicted for terrorism offences and certain other offences - refer to Conviction for terrorism and related offences (s35A) or

being the child of responsible parents who cease to be citizens - refer to Children of responsible parents who cease to be citizens (s36).

The ways a person would lose citizenship under the old Act differed. For information regarding loss under the old Act refer to Historical cessation provisions and the legislation and policy that was in place at that time.

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Chapter 2 - Citizenship legislative framework

Overview of citizenship legislative framework Australian citizenship was first defined in law in the Nationality and Citizenship Act 1948, which came into force on 26 January 1949. The Nationality and Citizenship Act 1948 was renamed the Citizenship Act 1948 on 4 June 1969 and the Citizenship Act 1948 was renamed the Australian Citizenship Act 1948 on 1 December 1973. Each title of the Act is referred to in Citizenship Policy as the ‘old Act’.

Before the old Act, the concept of Australian citizenship did not exist - Australian-born and those naturalised in Australia had the status of British subjects. Refer to Chapter 23 - British subjects.

The Act, which came into effect on 1 July 2007, sets out the conditions under which Australian citizenship may be acquired or lost. The Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) provide for transitional matters in relation to applications under the old Act. The Australian Citizenship Regulations 2007 (the Regulations) prescribe matters permitted by the Act for carrying out or giving effect to the Act. There are also a number of legislative instruments, instruments of delegation, instruments of authorisation, and a determination made under the Act.

The Acts, the Regulations, instruments, determinations and procedural guidance are published and distributed separately from this policy document.

The Citizenship Policy document provides guidance on the purpose and interpretation of the Act and the Regulations. It also provides additional policy requirements within the framework of the Act.

This chapter provides guidance on:

Citizenship legislative framework

The Act.

Citizenship legislative framework

Citizenship legislation from 1 July 2007

Australian Citizenship Act 2007 (the Act) - sets out who is an Australian citizen, how a person can become a citizen, the circumstances in which a person can cease to be a citizen, and other matters relating to Australian citizenship.

Australian Citizenship Regulations 2007 (the Regulations) - enable the effective administration of the Act.

Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) - provided for transitional arrangements, and set out consequential amendments to various Commonwealth Acts, that were necessary when the Act replaced the old Act on 1 July 2007.

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Citizenship legislation immediately prior to 1 July 2007

Australian Citizenship Act 1948 (the old Act, the 1948 Act) - In effect from 26 January 1949 to 30 June 2007.

Australian Citizenship Regulations 1960 (the old Regulations).

Citizenship legislation on 26 January 1949

the old Act.

Some people automatically acquired Australian citizenship on 26 January 1949 when the old Act came into effect or in the years following under various transitional arrangements. Refer to Chapter 24 - Historical transitional provisions.

Prior to 26 January 1949

Prior to 26 January 1949 the concept of Australian citizenship did not exist - Australian-born and those naturalised in Australia had the status of British subjects. The Naturalization Act 1903 and the Nationality Act 1920 were primarily concerned with the naturalisation of persons as British Subjects as part of the Commonwealth system.

Refer to Chapter 23 - British subjects.

The Act Refer to:

The Act - Preamble

The Act - Short title (s1)

The Act - Commencement (s2)

The Act - Simplified outlines

Offences and prosecutions under the Act

Offences under the old Act.

The Act - Preamble

A preamble was first introduced into the old Act from 24 January 1994 by the Australian Citizenship Amendment Act 1993 (no.71 of 1993).

The Act - Short title (s1)

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

The Act - Commencement (s2)

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

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The Act - Simplified outlines

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

The Act contains the following simplified outlines: s2A, s11A, s15A, s19B, s19G, s28A, and s32A.

The simplified outline are not provisions that can be used to make decisions under the Act, merely descriptions of the content that will appear in the remainder of the Part, Division, or Subdivision that they preface and describe.

Offences and prosecutions under the Act

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.

The offence provisions under the Act cover the:

surrender of evidence (s38) - refer to Surrender of evidentiary notice (s38)

alteration of evidentiary notice (s39) - refer to Altering evidentiary notice (s39)

access of identifying information (s42) - refer to Accessing identifying information (s42)

disclosure of identifying information (s43) - refer to Disclosing identifying information (s43)

unauthorised modification or impairment of identifying information (s44) - refer to Unauthorised modification or impairment of identifying information (s44)

destruction of identifying information (s45) - refer to Destroying identifying information (s45)

making of false statements or representations (s50) - refer to False statements or representations (s50).

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False statements or representations (s50)

Under s50 a person commits an offence if they knowingly make, or cause to be made, a false or misleading statement or representation for a purpose of or in relation to the Act. For example, they might knowingly provide false or misleading information in their application for citizenship. The penalty is imprisonment for 12 months.

A person also commits an offence if they behave in a way which conceals a material circumstance for a purpose in relation to the Act. For example, they may neglect to mention the conviction of a ‘serious offence’ in their application for citizenship. The penalty is imprisonment for 12 months.

If an alleged offence under s50 comes to notice after acquisition of citizenship, prosecution action may be considered. A conviction under s50 is necessary to enable consideration to be given to revocation of a person’s citizenship.

In some situations the provision of false statements or representations in the citizenship application may replicate a deception that occurred in the person’s application for entry to Australia. A person may be prosecuted for such an offence under s234, s236, s243 or s244 of the Migration Act 1958 (the Migration Act) or s134.1, s134.2, s135.1, s135.2, s135.4 or s136.1 of the Criminal Code. If convicted under these sections, and if the false information was material to the person obtaining permanent residence, consideration may be given to revocation of citizenship. Prosecution under the Migration Act or the Criminal Code may, in some situations, be an alternative to prosecution under s50.

However, if the provision of false or misleading information was only in respect of the citizenship application, a successful prosecution under s50 would be necessary if revocation of citizenship is to be considered. The Crimes Act 1914 (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 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 refer the person for investigation. 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.

Geographical jurisdiction for offences (s51)

Section 51 of the Act provides that s15.4 of the Criminal Code applies to all offences against the Act. Section 15.4 of the Criminal Code states:

‘If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:

whether or not the conduct constituting the alleged offence occurs in Australia and

whether or not a result of the conduct constituting the alleged offence occurs in Australia.

Note: The expression offence is given an extended meaning by section 11.2(1), section 11.3 and section 11.6(1).

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This provides that if an offence under this Act occurs outside Australia, it still constitutes an offence under Australian law. This is the widest form of geographical jurisdiction for offences.

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, refer to Chapter 9 - Cessation of Australian citizenship.

Prosecution may be an appropriate response in some situations, particularly if the alleged offender has acquired Australian citizenship through deceit. A conviction is a pre-condition to consideration of revocation of Australian citizenship under s34.

Offences under the old Act

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 person’s application for the certificate may be commenced at any time.’

In summary, there is no time limit for the prosecution of fraud in relation to a citizenship application if the application was lodged on or after 10 April 1997.

The migration fraud provisions commenced on 10 April 1997.

The serious offences provision (serious offences committed prior to the grant of citizenship for which the person was convicted) was introduced in November 1984.

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Chapter 3 - Definitions used for citizenship

Overview of definitions used for citizenship Definitions of words and terms used in the Act are set out in Part 1 − Preliminary of the Act, in s3 through s10 (inclusive).

Regulation 4 of the Regulations also contains definitions of words and terms used in the Regulations.

In addition, some words and terms used in the Act that do not relate to definitions made specifically under the Act are defined by other relevant Commonwealth legislation where such definitions exist. For example, a number of words and terms are defined in the Acts Interpretation Act 1901, and certain words and terms, for example ‘parent’, are defined through case law.

Policy guidance in relation to certain terms not defined in legislation are set out in this document, for example things to consider when assessing a parent-child relationship, claims of administrative error, and claims relating to significant hardship.

Definitions AAT - when used in Citizenship Policy refers to the Administrative Appeals Tribunal.

Act - when used in Citizenship Policy refers to the Australian Citizenship Act 2007.

administrative error - refer to Administrative error.

adverse security assessment (s3 of the Act) - has the meaning given by s35 of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act). Section 35 of the ASIO Act provides that:

‘Adverse security assessment means a security assessment in respect of a person that contains:

a) any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person and

b) a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.’

National security considerations apply to decisions on applications for citizenship under s17 (descent), s19D (citizenship for persons adopted in accordance with the Hague Convention on Intercountry adoption or a bilateral arrangement), s24 (conferral) and s30 (resumption).

artificial conception procedure (s3 of the Act) - is defined as including:

a) artificial insemination and

b) the implantation of an embryo in the body of a woman.

For policy and procedure with cases involving artificial conception procedures refer to Chapter 20 - Parents and Parent-Child Relationship.

ASIO - Australian Security Intelligence Organisation.

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Australia (s3 of the Act) - geographic Australia for citizenship purposes includes the external territories. Refer to Australia and the external territories.

Australian citizen (s3 and s4 of the Act) - means a person who:

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

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

Australian law (s3 of the Act) - means a law of the Commonwealth, a State or a Territory.

Bogus document (s3 of the Act) - since 18 April 2015, has had the same meaning as in s5(1) of the Migration Act 1958. Essentially, a bogus document in relation to a person is a document that the Minister reasonably suspects:

purports to have been, but was not, issued in respect of the person; or

is counterfeit or has been altered by a person who does not have authority to do so; or

was obtained because of a false or misleading statement, whether or not made knowingly.

For information regarding the bogus documents provisions in Part 3, Division 1 of the Act, refer to Chapter 15 - Bogus documents.

child (s3 of the Act) - 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 parent and responsible parent. Refer to Chapter 20 - Parents and Parent-Child Relationship and Chapter 21 - Responsible parent.

children born after the death of a parent (s7 of the Act) - For the purposes of the Act, s7 provides that the status of the parent at the time of their child’s birth is the status that the parent held at the time of their death.

children born as a result of artificial conception procedures or surrogacy arrangements (s8 of the Act) - refer to Chapter 20 - Parents and Parent-Child Relationship.

children born on ships or aircraft (s7 of the Act) - For the purposes of the Act, s7 prescribes the place of birth for a person born on a ship or aircraft.

commencement day (s3 of the Act) - means the day on which sections 2A to 54 (as originally enacted) commence. Refer to The Act - Commencement (s2).

confinement in prison or psychiatric institution (s9 of the Act) - necessary consideration in relation to the general residence requirement and its discretions, the two special residence requirements and the relevant discretions to each. Refer to Chapter 7A - Residence Requirement. Also refer to the definitions of ‘prison’ and ‘psychiatric institution’ set out in s3 of the Act.

Crimes Act - when used in Citizenship Policy refers to the Crimes Act 1914.

de facto partner (s3 of the Act) - 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). Refer to Ministerial discretion - Spouses and de facto partners (s22(9) and s22(10)).

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disclose (s3 of the Act) - in relation to identifying information that is a personal identifier provided under Division 5 of Part 2, includes providing unauthorised access to the personal identifier, refer to Chapter 14 - Personal identifiers.

entrusted person (s3 of the Act) - means the Secretary or an employee of the department, a locally engaged employee or contractor, refer to Chapter 14 - Personal identifiers.

exempt non-citizen - refer to Chapter 18 - New Zealand citizens in Australia.

external territories of Australia - refer to Australia and the external territories.

foreign law (s3 of the Act) - a law of a foreign country, which is any country other than Australia.

identifying information (s3 of the Act) - means personal identifier information provided under the Act or information derived from that personal identifier that could identify a person, refer to Chapter 14 - Personal identifiers.

Lawful presence / residence - A person’s presence in Australia is considered to be lawful if they have permission to be in Australia either because they are an Australian citizen, or they hold a visa under the Migration Act that is in effect. Refer also to the guidance provided on ‘unlawful non-citizen’ also in the Definitions section.

Migration Act - when used in Citizenship Policy refers to the Migration Act 1958.

national security offence (s3 and s6A of the Act) - means an offence against certain specified provisions of legislation concerning national security. Refer to Chapter 12 - National security.

New Guinea (s3 of the Act) - 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. Refer to Chapter 19 - Papua, New Guinea, and Papua New Guinea.

old Act (s3 of the Act) - means the Australian Citizenship Act 1948 that was in force from 26 January 1949 up to and including 30 June 2007. The Australian Citizenship Act 1948 was formerly titled the Nationality and Citizenship Act 1948 from 26 January 1949 to 3 June 1969 and the Citizenship Act 1948 from 4 June 1969 to 30 November 1973.

ordinarily resident (s3 of the Act) - s3 provides a definition of ordinarily resident for the purposes of the Act. For further guidance regarding the definition of ordinarily resident and considerations of it, refer to Ordinarily resident.

Papua (s3 of the Act) - 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. Refer to Papua - former Australian territory and Chapter 19 - Papua, New Guinea, and Papua New Guinea.

parent (Full Federal Court ruling) - refer to Chapter 20 - Parents and Parent-Child Relationship.

permanent resident (s3 and s5 of the Act) - whether a person is considered to be a permanent resident for the purposes of the Act is determined by s5 of the Act. As noted in s5 of the Act, determinations regarding permanent resident status prior to 1 July 2007 are to be made under the old Act that was in force at that time, and the permanent resident status of certain categories of persons are set out in the legislative instrument made under s5(2) of the Act. Refer to Permanent resident for citizenship.

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permanent visa (s3 of the Act and item 3(1), Schedule 3 of the Transitional Act) - a visa which permits the holder to remain indefinitely in Australia. Note that the travel authority of such a visa is not indefinite.

personal identifier (s3 of the Act) - has the meaning given by s10 of the Act. Refer to Chapter 14 - Personal identifiers.

personal identifier (s10 of the Act) - means fingerprints, handprints, height and weight measurements, photo of face and shoulders, iris scan, signature or any other identifier prescribed by the Regulations. Refer to Chapter 14 - Personal identifiers.

prison (s3 of the Act) - includes any custodial institution. Refer to s9 of the Act for information relating to confinement in prison or psychiatric institution.

psychiatric institution (s3 of the Act) - includes the psychiatric section of a hospital. Also refer to s9 of the Act for information relating to confinement in prison or psychiatric institution.

qualified security assessment (s3 of the Act) - has the meaning given by s35 of the Australian Security Intelligence Organisation Act 1979. Refer also to Chapter 12 - National security.

Regulations - when used in Citizenship Policy refers to the Australian Citizenship Regulations 2007.

responsible parent (s3 and s6 of the Act) - is defined in s6 of the Act. Refer to Chapter 21 - Responsible parent.

serious prison sentence (s3 of the Act) - means a sentence of at least 12 months. Whether a prison sentence is a ‘serious prison sentence’ depends on the length of the sentence handed down by the courts, not the amount of time the person spends in prison. For example, a sentence of 12 months in prison is a ‘serious prison sentence’, despite the fact the person may be released on good behaviour after spending less than 12 months in prison. A sentence of at least 12 months periodic detention may also be considered a ‘serious prison sentence’, but must be assessed on a case by case basis.

serious repeat offender (s3 of the Act) - 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 that was committed after the person has been released from prison for a serious prison sentence, and then 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’.

significant hardship or disadvantage / detriment - refer to Significant hardship or disadvantage / detriment.

special category visa (SCV) (s3 of the Act) - is a temporary visa enabling New Zealand citizens to be lawful non-citizens while they remain in Australia.

special purpose visa (s3 of the Act) - are a class of substantive temporary visas provided for in the Migration Act. They provide lawful status to non-citizens who need to travel to, enter and remain in Australia but to whom Australia’s standard visa regime and immigration clearance processes are taken not to apply. The categories of persons to whom SPVs may apply are airline crew, members of foreign military forces that have an agreement with Australia, guests of Government, transit passengers from certain countries and members of the Royal Family. Refer to section 33 of the Migration Act.

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Stateless Persons Convention (s3 of the Act) - refers to the Convention Relating to the Status of Stateless Persons 1954. Article 1(2)(iii) of the Convention applies to applications under Division 2, Subdivision A - Citizenship by Descent and provides that the Convention does not apply:

‘(iii) To persons with respect to whom there are serious reasons for considering that:

(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;

(b) They have committed a serious non-political crime outside the country of residence prior to their admission to that country;

(c) They have been guilty of acts contrary to the purposes and principles of the United Nations.’

stepchild (s3 of the Act) - this definition is to extend the meaning of stepchild to children in de facto relationships, including same-sex de facto relationships.

Transitional Act - when referred to in the Citizenship Policy document refers to the Australian Citizenship (Transitionals and Consequentials) Act 2007.

unlawful non-citizen (s3 of the Act and item 3(1), Schedule 3 of the Transitional Act) - Unlawful non-citizen is defined in s3 of the Act and s3(1) of the Transitional Act. An unlawful non-citizen is a person who is not an Australian citizen and is present in Australia without a valid visa.

visa (s3 of the Act and item 3(3), Schedule 3 of the Transitional Act) - s3 of the Act provides that ‘visa’ has the same meaning as in the Migration Act. 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.

Administrative error The administrative error discretions are available in the general residence requirement (s22), and the special residence requirements (s22A and s22B).

The concept of ‘administrative error’ embraces a range of administrative actions. In broad terms it will extend to administrative mistakes and circumstances in which incorrect information is provided. While each case will need to be assessed on its own merits, some examples include:

the applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa on the department’s system.

the applicant was advised by the department that they were a lawful non-citizen when in fact they were unlawful

the applicant had been entitled to a permanent visa but made an application for a temporary visa as a result of incorrect advice from an officer of the department.

A delay in processing an application does not constitute an administrative error in itself. Where an adverse decision on an application is subject to formal review and the decision is subsequently overturned, this is still considered within the normal parameters of an application process and does not constitute an administrative error.

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The onus is on the applicant to provide evidence that an administrative error has occurred. All reasonable efforts should be made by the decision maker to verify the applicant’s claims. The department may on its own initiative take action where the department can identify a clear case of administrative error and apply this discretion on the applicant’s behalf.

Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of administrative error will require examination of client records relating to the relevant visa.

Refer to:

Ministerial discretion - Administrative error (s22(4A) and s22(5))

Ministerial discretion - Administrative error (s22A(4) and s22A(5))

Ministerial discretion - Administrative error (s22B(4) and s22B(5)).

Australia and the external territories For the purposes of the Act, ‘Australia’, when used in a geographical sense, includes the external territories (s3).

The definition of Australia as a geographical area for citizenship purposes has changed depending on what areas were and were not external territories at that time.

Currently Australia’s external territories are the Australian Antarctic Territory, Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Heard and McDonald Islands, and Norfolk Island. The following list provides the dates on which each became an external territory of Australia:

The Australian Antarctic Territory became an Australian territory on 13 June 1933.

The Ashmore and Cartier Islands became an Australian territory on 3 May 1934.

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

The Cocos (Keeling) Islands have been part of Australia since 23 November 1955. Refer to Cocos (Keeling) Islands.

The Coral Sea Islands became an Australian territory on 30 September 1969.

Heard and McDonald Islands became an Australian territory on 24 April 1953.

Norfolk Island is part of Australia for the purposes of the Act but until 1 July 2016 it was not for the purposes of the Migration Act. Norfolk Island was also part of Australia for the purposes of the old Act. Refer to Norfolk Island.

Immediately before they became Australia territories, there was provision for people ordinarily resident in Norfolk Island, Cocos (Keeling) Islands and Christmas Island territories, to acquire Australian citizenship by registration of a declaration. For further information, refer to Norfolk Island, Cocos (Keeling) Islands, and Christmas Island.

Papua was formerly an external territory of Australia. Refer to Papua - former Australian territory.

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Ordinarily resident Section 3 of the Act provides a definition of ordinarily resident for the purposes of the Act. The s3 definition provides that person can be considered to be ordinarily resident in a country if, and only if, they have their home in that country or that country is the country of their permanent abode even if they are temporarily absent from that country. That is, a person cannot be considered to be ordinarily resident where they reside only on a temporary basis.

The term ‘ordinarily resident’ is used in four provisions in the Act:

s12(1)(b) in relation to a child becoming an Australian citizen on their 10th birthday - refer to Citizenship by birth on 10th birthday (s12(1)(b))

s22A and s22B in relation to special residence requirements - refer to Special residence requirements (s22A and s22B) and

s33(3)(b) in relation to renunciation - refer to Renunciation by application (s33).

It is also used in consideration of a number of citizenship policy areas, and in relation to considerations under the permanent resident legislative instrument.

Ordinarily resident - considerations

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

whether the applicant retained a right to re-enter Australia during the period of absence 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.

Absences during the period being considered

A person will be not considered to be ordinarily resident in another country just because they are, or have been, temporarily absent from Australia, but would be considered to be ordinarily resident in another country if they are residing in that country and Australia has ceased to be their permanent place of residence. Refer to Temporary absences and Permanent removal / absence.

Temporary absences

Temporary absences from Australia do not necessarily mean that Australia has ceased to be the permanent place of residence. It is relevant to consider whether the person retained the right to return to Australia during the absences.

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The person does not need to be in Australia on a particular day to be considered ordinarily resident in Australia on that day. For example, when considering whether a child may have automatically acquired Australian citizenship on their 10th birthday (under s12(1)(b) of the Act), the child need not have been present in Australia on the day of their 10th birthday to have been considered to have been ordinarily resident throughout the 10 year period.

Permanent removal / absence

If the person has been removed from Australia under the Migration Act and they no longer have the right to return to Australia they cannot be considered to be ordinarily resident in Australia from that time onwards.

For example, when assessing whether a child may have automatically acquired Australian citizenship on their 10th birthday (under s12(1)(b) of the Act), if the child was removed from Australia under the Migration Act (possibly with their family) prior to their 10th birthday and they did not have the right to return to Australia they cannot be considered to have been ordinarily resident in Australia throughout the 10 years commencing from birth.

Children born to foreign diplomats - generally not ordinarily resident

A child born in Australia on or after 25 November 1952 to a foreign diplomat posted here for a limited period would not be taken to be ordinarily resident in Australia for the purposes of the s12(1)(b) of the Act (automatic acquisition of citizenship by birth on the 10th birthday).

For the history of law and policy for foreign diplomats, refer to Children born to foreign diplomats - citizenship by birth.

Permanent resident for citizenship Whether a person is considered to be a permanent resident for the purposes of the Act is determined by s5 of the Act. As noted in s5 of the Act, determinations regarding permanent resident status prior to 1 July 2007 are to be made under the old Act that was in force at that time, and the permanent resident status of certain categories of persons are set out in the legislative instrument made under s5(2) of the Act.

The permanent resident status of a person is relevant for number of citizenship provisions, including:

the criteria for automatic acquisition of citizenship by birth in s12 of the Act - parent of the person is an Australian citizen or permanent resident at the time the person is born (refer to Citizenship by birth - overview)

the criteria for automatic acquisition by adoption in s13 of the Act - person is present in Australia as a permanent resident at the time of the adoption (refer to Citizenship by adoption (s13))

the eligibility criteria for several of the conferral pathways in s21 of the Act - person is a permanent resident at the time of application and at the time of decision (refer to Eligibility for conferral). Further, if the person is required to make a Pledge, but is no longer a

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permanent resident the approval may be cancelled under s25 of the Act (refer to Minister may cancel approval (s25))

the eligibility requirements for the conferral pathways under the Act did not always historically require applicants to be a permanent resident at the time of decision. Prior to 7 October 2008, applicants for conferral under s21(2), s21(3) and s21(4) were required to be permanent residents at the time of application, but not at the time of decision. Prior to 9 November 2009, there was no legal requirement for a person under the age of 18 years applying for Australian citizenship by conferral under s21(5) to be a permanent resident, however, under policy most persons applying under s21(5) were required to be a permanent resident at the time of application.

the eligibility criteria for sitting all forms of the citizenship test, set out in Parts A, B and C of Attachment 1 to the Test Determination (refer to Chapter 7B - Citizenship test)

the residence requirement set out in s22, s22A and s22B of the Act (refer to Chapter 7A - Residence Requirement).

Definition of permanent resident

Permanent resident is defined in s5 of the Act. A person is a permanent resident if they meet one of the three elements to the definition, being:

the person is present in Australia at that time and holds a permanent visa at that time - refer to the definition of ‘permanent visa’ in Definitions

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

the person is covered by a legislative instrument made under s5(2) of the Act. The legislative instrument made under s5(2) covers New Zealand citizens (refer to Chapter 18 - New Zealand citizens in Australia) and persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands on an unrestricted basis - refer to Norfolk Island, and Cocos (Keeling) Islands.

Permanent resident under the old Act

If it is necessary to work out whether the person was a permanent resident before commencement day of the Act (1 July 2007), this should be done by reference to the old Act as in force at the relevant time.

From 22 November 1984, s5A was inserted into the old Act to provide that certain non-citizens were to be taken to be, or to have been, permanent residents for the purposes of the old Act. Section s5A of the old Act defined who could be considered a permanent resident when the person was present in Australia before or after the commencement of the Migration Amendment Act 1983.

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Further provisions were set out in declarations made under s5A(2) of the old Act, and the prescribed visas for the purposes of s5A(1)(d)(i)(A) of the old Act were set out in regulation 5(1A) of the Australian Citizenship Regulations 1960 (the old Regulations).

The definition of permanent resident in the old Act was complex, but generally a person was considered to be a permanent resident if their presence in Australia was not subject to any time limitation under the Migration Act.

In relation to periods spent in Australia (excluding Norfolk Island and the Cocos (Keeling) Islands), a person was considered to be a permanent resident if the person:

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

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

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

A person in Australia would not be a permanent resident during periods, for example, that the person held a temporary entry permit or a temporary visa or was a prohibited immigrant, prohibited non-citizen or illegal entrant.

In relation to periods spent in a prescribed Territory (Norfolk Island and the Cocos (Keeling) Islands) a person is a permanent resident while lawfully present in the territory if:

the person’s presence in the territory was not subject to any limitation as to time or

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

In relation to periods spent outside Australia, a person was considered to be a permanent resident if they held 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, refer to s5A(1)(d) of the old Act and regulation 5(1A) of the old Regulations.

Permanent resident for conferral

For guidance on the permanent resident requirements relating to applicants for citizenship by conferral, refer to:

Permanent resident for conferral.

Permanent residence and British nationality

For information on British subject status refer to Chapter 23 - British subjects.

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New Zealand citizens as permanent residents

New Zealand citizens who do not hold a permanent visa under the Migration Act are able to be considered to be permanent residents for citizenship purposes under the legislative instrument made under s5(2) of the Act. Refer to Permanent resident status of New Zealand citizens.

Significant hardship or disadvantage / detriment A number of provisions in the Act require an assessment of whether a person would suffer significant hardship or disadvantage / detriment. In addition, the policy guidelines relating to applications for conferral from persons aged under 18 years (those conferral applicants seeking to acquire citizenship through s21(5) of the Act), ask that an assessment be made as to whether the applicant would suffer significant hardship or disadvantage if they were not to acquire citizenship. Refer to:

Person aged under 18 years (s21(5))

Ministerial discretion - Significant hardship or disadvantage (s22(6))

Chapter 8 - Resuming citizenship.

In making an assessment of whether a person would suffer significant hardship or detriment / disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:

significant - important; of consequence

hardship - a condition that bears hard upon one; severe toil, trial, oppression, or need

disadvantage - absence or deprivation of advantage; any unfavourable circumstance or condition

detriment - loss, damage, or injury

economic - relating to the production, distribution, and use of income and wealth.

Personal needs and personal wants

There is a difference between personal needs and personal wants in respect of whether a person’s circumstances constitute ‘significant hardship or disadvantage’.

Personal needs

Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.

Personal wants

Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).

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Australian citizenship is not a requirement to study in Australia at the primary or secondary levels. Australian universities may admit students who are not Australian citizens however eligibility for Commonwealth supported place may be limited to Australian citizens or permanent humanitarian visa holders. Further information on Commonwealth supported places is available from the Department of Industry, Innovation, Science, Research and Tertiary Education. Education, Science and Training at: http://www.innovation.gov.au/Pages/default.aspx

For conferral

People would normally be required to demonstrate some or all of the following circumstances:

inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available

difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document

academic (for example, research, academic scholarship) or other (sporting, etc.) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.

Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.

Evidence is required that a person’s lack of Australian citizenship is the cause of the:

significant hardship

or

disadvantage or detriment.

For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.

For resumption

Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine if the person renounced their citizenship to avoid suffering significant hardship or detriment. Some examples of hardship or detriment for the resumption provision (s29) include:

a requirement to pay higher taxes (for example where higher taxes may prevent a person being able to afford fundamental assets such as a family home)

denial of the usual marital rights in relation to tax and inheritance laws on the death of a spouse or otherwise

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ineligibility to obtain a driver’s licence which may affect a person’s employment prospects

denial of, or significant restrictions on access to social security benefits

ineligibility to undertake formal courses of study and/or obtain certain education qualifications

inability to access loans from financial institutions

ineligibility to purchase or retain property

loss of cultural or family heritage

inability to allow their children to participate fully in the social, political and cultural life of their other country of residence

difficulties in obtaining visas particularly when required to travel to several countries, frequently, in the course of employment

inability for families to be treated as a unit when family members hold different passports

requirement to apply regularly for residency and work permits.

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Chapter 4 - Automatic acquisition of citizenship

Overview to chapter This chapter provides guidance on:

Overview of automatic acquisition provisions

Automatic citizenship can be lost

Citizenship by birth - overview

Citizenship by birth at time of birth (s12(1)(a))

Citizenship by birth on 10th birthday (s12(1)(b))

Historical provisions - Birth in Australia

Children born to foreign diplomats - citizenship by birth

Citizenship by adoption (s13)

Citizenship for abandoned children (s14)

Citizenship by incorporation of territory (s15).

Overview of automatic acquisition provisions Part 2 Division 1 of the Act covers the prescribed circumstances where automatic citizenship may apply, refer to:

s12(1)(a) - Citizenship by birth, at time of birth - refer to Citizenship by birth - overview

s12(1)(b) - Citizenship by birth, on 10th birthday - refer to Citizenship by birth on 10th birthday (s12(1)(b))

s13 - Citizenship by adoption, refer to Citizenship by adoption (s13)

s14 - Citizenship for abandoned children, refer to Citizenship for abandoned children (s14)

s15 - Citizenship by incorporation of Territory, refer to Citizenship by incorporation of territory (s15).

It is important to note that the automatic acquisition provisions have changed over time. It will be necessary to go back to the legislation that was in force at the time of the event in question to make a finding about whether or not a person has acquired citizenship automatically. Historical citizenship legislation for certain periods may be obtained from LEGEND (or LEGENDcom - refer to www.border.gov.au/Trav/Visa/LEGE), the Federal Register of Legislation website (www.legislation.gov.au), and/or AustLii (www.austlii.edu.au).

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When the old Act came into effect on 26 January 1949, it contained a number of automatic provisions, whereby certain people automatically acquired citizenship on 26 January 1949 or on the date of entry to Australia, within certain timeframes. These provisions are commonly referred to as the historical transitionals, refer to Chapter 24 - Historical transitional provisions.

Refer also to Day citizenship begins.

Day citizenship begins

The automatic acquisition of Australian citizenship is by operation of law. This means that a person will automatically acquire citizenship when the legislative criteria are satisfied. It is not necessary for the department to become aware of the acquisition.

Due to operation of law, there is no decision to be made, but rather a finding of fact will be made as to whether the provisions have been met (and when that occurred).

Hence, a finding of fact is necessary for people seeking evidence that they automatically acquired Australian citizenship. For further information on applications for Evidence of Australian Citizenship, refer to Chapter 10 - Evidence of Australian citizenship.

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

Automatic citizenship can be lost It is important to note that a person can lose their Australian citizenship as a result of their actions, or as a result of their responsible parent’s actions. When making a finding about a person’s citizenship status consideration must be given to whether the person may have lost their citizenship after acquiring it automatically. Refer to Chapter 9 - Cessation of Australian citizenship.

Citizenship by birth - overview The current citizenship by birth provisions are set out in s12 of the Act. Section 12 of the Act provides for the automatic acquisition of citizenship for certain person at the time of birth (s12(1)(a)) and on the 10th birthday (s12(1)(b)).

Different automatic acquisition rules apply for citizenship by birth according to the person’s date of birth. Since the legal status of Australian citizenship came into force on 26 January 1949, there have been various changes to the citizenship legislation relating to the automatic acquisition of Australian citizenship by birth. Refer to Historical provisions - Birth in Australia and Chapter 24 - Historical transitional provisions.

Citizenship by birth at time of birth (s12(1)(a)) 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), refer to Chapter 10 - Evidence of Australian citizenship.

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In order to acquire citizenship through this provision the person must have had a parent who was an Australian citizen or permanent resident at the time of the person’s birth.

Person’s place of birth

It is important to note that certain external territories are encompassed by the term ‘Australia’ for the purposes of the Act, and certain territories either are, or were previously, considered to be part of geographic Australia for citizenship purposes. A person who was not born on mainland Australia may therefore still be eligible to acquire citizenship automatically under s12 of the Act if they were born in a place that was at the time of their birth considered to be part of geographic Australia for citizenship purposes.

Refer to:

Australia and the external territories

Children born in Cocos (Keeling) Islands

Children born in Norfolk Island

Papua - former Australian territory

Chapter 19 - Papua, New Guinea, and Papua New Guinea.

Born on a ship or aircraft

Section 7 of the Act sets out the place of birth of a person born on a ship or aircraft.

Status of the person’s parent

Consideration needs to be given to whether the claimed parent would be considered to be a parent of the person for citizenship purposes at the time of the person’s birth. Refer to Chapter 20 - Parents and Parent-Child Relationship.

It is also necessary to determine the citizenship and/or migration status of the parent at the time of the person’s (the parent’s child) birth:

for further guidance on the meaning of permanent resident for the purposes of the Act, refer to Permanent resident for citizenship. If it is necessary to work out if a person was a permanent resident at a time before commencement of the Act the definition of permanent resident in the old Act must be used. Refer to Permanent resident under the old Act

the ability of a child born to a foreign diplomat to acquire citizenship by birth has changed over time. Refer to Children born to foreign diplomats - citizenship by birth

the status of New Zealand citizens in Australia has changed over time. Refer to Chapter 18 - New Zealand citizens in Australia

if parent may have acquired their citizenship automatically

if the parent was born prior to 26 January 1949 it may be necessary to determine if the parent acquired citizenship automatically under the historical transitional arrangements. Refer to Chapter 24 - Historical transitional provisions

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if the parent died prior to the applicant’s birth. Refer to Death of the parent before birth

if the parent was an Australian citizen they may have subsequently lost that citizenship prior to the applicant’s birth, refer to Parent may have ceased to be a citizen.

Death of the parent before birth

Section 7 of the Act provides that where a parent has died before the applicant’s birth, the parent is taken to have the status they did before their death. This may require an assessment as to whether the parent may have lost their Australian citizenship sometime before their death.

Parent may have ceased to be a citizen

While the parent may have at one time held Australian citizenship it is important to determine if the parent was a citizen at the time of the applicant’s birth. There are a number of ways that a person may have ceased to be an Australian citizen. Refer to:

Chapter 9 - Cessation of Australian citizenship

Historical cessation provisions.

In all cases where a parent has acquired the citizenship of another country prior to 4 April 2002 consideration must be given to whether the parent ceased to be an Australian citizen prior to the birth of their child. Refer to Section 17 - repealed on 4 April 2002 and Section 23 - Child whose responsible parent ceased citizenship.

If a parent lost Australian citizenship under s17 of the old Act (but not s23) prior to the birth of the child, the child may be eligible to apply for citizenship by conferral under s21(6). Refer to Person born to former Australian citizen (s21(6)).

Citizenship by birth on 10th birthday (s12(1)(b)) Children born in Australia on or after 20 August 1986, who did not acquire Australian citizenship at birth, automatically acquire it if they have been ordinarily resident in Australia throughout the 10 year period beginning on the day of their birth (s12(1)(b)). In such cases, the child will become an Australian citizen on their 10th birthday.

This provision operates regardless of the migration or citizenship status of the parent(s).

For guidance on the consideration of ordinarily resident, refer to Ordinarily resident.

The person does not need to be in Australia on their 10th birthday for this provision to apply.

If a child has been removed from Australia under the Migration Act (possibly with their family) prior to their 10th birthday and did not have the right to return to Australia they cannot be considered to have been ordinarily resident in Australia throughout the 10 years commencing from birth.

Child born to foreign diplomats

Children born to foreign diplomats are generally not ‘ordinarily resident’.

A child born in Australia on or after 25 November 1952 to a foreign diplomat posted here for a limited period would not be taken to be ordinarily resident in Australia for the purposes of s12(1)(b) of the Act.

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For guidance on the consideration of ordinarily resident, refer to Ordinarily resident.

Historical provisions - Birth in Australia The legislative criteria for the automatic acquisition of citizenship by birth has changed over time with different provisions included in the Act and the old Act for:

20 August 1986 to the present

22 November 1984 to 19 August 1986 inclusive

6 May 1966 to 21 November 1984 inclusive

26 January 1949 to 5 May 1966 inclusive

Before 26 January 1949

Transitional arrangements on 26 January 1949.

In addition, if:

the person was born to a New Zealand citizen parent, the status of the New Zealand parent in Australia at that time determined whether their child acquired citizenship automatically. Refer to Children born in Australia to New Zealand citizen parents

the person was born to a parent who was a foreign diplomat, refer to Children born to foreign diplomats - citizenship by birth.

20 August 1986 to the present

People born in Australia are Australian citizens if at least one parent is an Australian citizen or a permanent resident at the time of the person’s birth in Australia.

If neither parent is an Australian citizen or a permanent resident at the time of a person’s birth in Australia, and the person is ordinarily resident in Australia throughout the period of 10 years commencing from birth, the person automatically acquires Australian citizenship on their 10th birthday. Refer to Citizenship by birth on 10th birthday (s12(1)(b)) for further information.

A child is not an Australian citizen by birth if a parent is an enemy alien and the birth occurred in a place in Australia at a time that place was under occupation by the enemy, unless a parent was an Australian citizen or a permanent resident and was not an enemy alien.

22 November 1984 to 19 August 1986 inclusive

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

6 May 1966 to 21 November 1984 inclusive

People born in Australia were Australian citizens at birth unless their father was a diplomat. Refer to Diplomat parents from 25 November 1952 to present for further information.

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People born in Papua between 26 January 1949 and 15 September 1975 were Australian citizens at birth. However, most people ceased to be Australian citizens on 15 September 1975 with the declaration of PNG Independence on 16 September 1975. Refer to Chapter 19 - Papua, New Guinea, and Papua New Guinea.

People born between 1 December 1973 and 21 November 1984 acquired Australian citizenship at birth if, at the time of the birth, the person’s mother was an Australian citizen and the person would otherwise be stateless. Refer to s23D(2) of the Act as in force at that time.

26 January 1949 to 5 May 1966 inclusive

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

Before 26 January 1949

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

For information regarding British subject status, refer to Chapter 23 - British subjects.

Transitional arrangements on 26 January 1949

When the old Act came into effect on 26 January 1949 some people automatically became Australian citizens as a result of the provisions of s25 of that Act. The repeal of s25 on 1 May 1987 did not affect the citizenship status of such people. Refer to Chapter 24 - Historical transitional provisions.

Children born to foreign diplomats - citizenship by birth The law and policy for foreign diplomats has changed since 1949.

Diplomat parents prior to 26 January 1949

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

Diplomat parents from 26 January 1949 to 24 November 1952

If the father was a diplomat from a Commonwealth country, his children born in Australia acquired Australian citizenship at birth. If the father was a diplomat from a non-Commonwealth country, his children born in Australia did not acquire Australian citizenship at birth.

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Until the commencement of the Australian Diplomatic Immunities Act 1952 on 25 November 1952, diplomats from Commonwealth countries did not represent a foreign sovereign, and therefore at common law they did not have immunity from suit and legal process.

Diplomat parents from 25 November 1952 to present

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

A child born in Australia on or after 25 November 1952 to a foreign diplomat posted here for a limited period would not be taken to be ordinarily resident in Australia for the purposes of s12(1)(b) of the Act. For guidance on the consideration of ordinarily resident, refer to Ordinarily resident.

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

Section 13 is an operation of law provision. Although there is no decision to be made to approve or refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of s13, refer to Chapter 10 - Evidence of Australian citizenship.

This provision does not apply to:

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

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

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

For further details on citizenship by adoption, refer to Citizenship by adoption in Australia (s13).

Citizenship for abandoned children (s14) Section 14 is an operation of law provision. Although there is no decision to be made to approve or refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of s14, refer to Chapter 10 - Evidence of Australian citizenship.

A child abandoned in Australia is deemed to have been born in Australia, unless the contrary is proven.

Citizenship by incorporation of territory (s15) Section 15 is an operation of law provision.

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If any territory becomes part of Australia, the Minister may determine, by instrument, the specified classes of persons who become Australian citizens on a specified date. A person of the specified class becomes an Australian citizen on the specified date.

The instrument can take effect before the date it is registered under the Legislative Instruments Act 2003.

No territory has been acquired since commencement of the Act and no instrument has been made under s15.

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Chapter 5 - Citizenship by descent

Overview of descent Part 2 Division 2 Subdivision A of the Act provides for certain persons who were born outside Australia to acquire citizenship by descent by application.

The provisions for Australian citizenship by descent under the old Act differed from those in the Act. The descent provisions in the old Act are summarised in Citizenship by descent under the old Act.

All evidentiary documentation must be closely examined. Where necessary, the applicant and claimed Australian citizen parent may be invited to undergo DNA testing to verify the claimed parentage of the applicant. Guidance on DNA testing is provided in Chapter 20 - Parents and Parent-Child Relationship.

Australian citizenship by descent is acquired on the day the application is approved. Refer to Day citizenship begins (s19).

Details of citizenship approvals must be registered. Refer to Registration (s18).

Under s19A of the Act a person who was approved to acquire Australian citizenship by descent may be found to have never acquired Australian citizenship if certain eligibility criteria were not met. Similarly, under the old Act, a person registered as a citizen by descent never became a citizen if the criteria in s10B were not met. Refer to Not a citizen despite approval (s19A).

Registration (s18)

Under s18 of the Act and regulation 5 of the Regulations, if the person is approved to become an Australian citizen by descent a record of the person’s acquisition of Australian citizenship must be made and included on the department’s system.

Day citizenship begins (s19)

A person becomes a citizen by descent on the day their application is approved. However, s19A provides that a person may not have acquired Australian citizenship by descent if it is discovered that certain eligibility criteria were not satisfied. For further information on s19A, refer to Not a citizen despite approval (s19A).

Not a citizen despite approval (s19A)

Section 19A provides that if a person did not become an Australian citizen by descent under the Act despite approval and registration as such, if it is found that the person did not have a parent who:

was an Australian citizen at the time of the person’s birth (if the person was born on or after 26 January 1949) or

became an Australian citizen on 26 January 1949 (if the person was born before 26 January 1949).

A finding of fact in relation to s19A can be made at any time.

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Under s10B of the old Act, despite registration as a citizen by descent, a person did not become an Australian citizen by descent if:

they did not have a parent at the time of their birth who was an Australian citizen or

their parent was a citizen by descent and had not been lawfully present in Australia for a period of, or for periods amounting in the aggregate to, at least 2 years at any time before their child’s name was registered.

Extract certificates - Descent

People who acquire citizenship by descent are issued with a citizenship by descent extract certificate. Refer to Extract certificates.

Eligibility for descent under the Act To acquire Australian citizenship by descent under the Act a person must satisfy one of the two sets of eligibility requirements set out in s16 of the Act, if born outside Australia:

on or after 26 January 1949 (the day that the old Act came into effect), the person is required to satisfy s16(2). Refer to Born on or after 26 January 1949 (s16(2))

prior to 26 January 1949 (that is, the person was born before the old Act came into effect), the person is required to satisfy s16(3). Refer to Born before 26 January 1949 (s16(3)).

Consideration also must be given to whether there is a prohibition to approval. Refer to Prohibitions - Minister’s decision (s17).

Born on or after 26 January 1949 (s16(2))

Section 16(2) sets out the eligibility criteria that a person born on or after 26 January 1949 must satisfy to be approved to become an Australian citizen by descent.

Born before 26 January 1949 (s16(3))

Section 16(3) sets out the eligibility criteria that a person born before 26 January 1949 must satisfy to be approved to become an Australian citizen by descent.

At the time the old Act came into effect on 26 January 1949 it contained a number of provisions in s25 that provided for the automatic acquisition of citizenship by certain categories of persons, including certain people born outside Australia who arrived to live in Australia by a certain date. In cases where a descent applicant was born prior to 26 January 1949 consideration must be given as to whether a parent of that person may have acquired citizenship under s25 of the old Act, and whether the descent applicant may have themselves acquired citizenship under s25 of the old Act. These provisions are commonly referred to as the citizenship historical transitional provisions and guidance on these is set out in Chapter 24 - Historical transitional provisions.

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Eligibility considerations for descent in the Act When considering whether a person satisfied the eligibility criteria set out in s16(2) and s16(3) of the Act it is important to consider whether:

a person was born inside or outside Australia (or New Guinea in the case of s16(3)) - refer to Person’s place of birth

the person’s claimed parent can be considered a ‘parent’ for citizenship purposes - refer to Parent for citizenship purposes and Status of the person’s parent

the applicant, if aged 18 or over at the time of application (and is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies), can be considered to be of ‘good character’ at the time of decision - refer to Character - descent applicants aged 18 and over.

Person’s place of birth

When considering the place of birth of the applicant for the purposes of s16(2) and s16(3), and of the parent for the purposes of s16(3) of the Act, it is important to note that certain external territories are encompassed by the term ‘Australia’ for the purposes of the Act, and certain territories either are, or were previously, considered to be part of geographic Australia for citizenship purposes. A person who was born outside mainland Australia may therefore still not be eligible to acquire citizenship by descent if they were born in a place that was at the time of their birth considered to be part of geographic Australia for citizenship purposes.

Refer to:

Australia and the external territories

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

Chapter 19 - Papua, New Guinea, and Papua New Guinea.

Born on a ship or aircraft

Section 7 of the Act sets out the place of birth of a person born on a ship or aircraft.


People born in the External Territory of Papua prior to 16 September 1975 are not eligible for Australian citizenship by descent because they were born in Australia.


People born in the Trust Territory of New Guinea prior to 16 September 1975 may be eligible for Australian citizenship by descent.

Eligibility will depend on whether they had, at the time of their birth, at least one parent who was an Australian citizen (or became an Australian citizen on 26 January 1949) and whether they are of good character.

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A person born in New Guinea before 16 September 1975 with Papuan born Australian citizen parents would have ceased to be an Australian citizen on 16 September 1975 and would not be eligible for Australian citizenship by descent.

People born in the Trust Territory of New Guinea prior to 16 September 1975, and who did not have the status of British subject or the citizenship of another country (excluding Australia), automatically became an Australian Protected Person (APP). An APP could be granted Australian citizenship by naturalisation under the old Act.

People born in PNG on or after 16 September 1975

A person born in PNG on or after 16 September 1975, may be eligible for Australian citizenship by descent if, at the time of their birth, at least one parent was an Australian citizen and if, aged 18 years or over, they are of good character.

Parent for citizenship purposes

It is important to consider whether the claimed parent would be considered to be a parent of the person for citizenship purposes at the time of the person’s birth. Refer to Chapter 20 - Parents and Parent-Child Relationship.

Status of the person’s parent

It is necessary to determine the citizenship status of an applicant’s parent at the time of the applicant’s birth. For the purposes of s16(2), for example, an applicant would not satisfy the eligibility criteria if:

the applicant’s parent at the time of the applicant’s birth acquired Australian citizenship after the birth of the applicant or

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

the applicant’s parent at the time of the applicant’s birth had previously been an Australian citizen, but had ceased to be an Australian citizen prior to the applicant’s birth.

If the claimed Australian citizen parent:

may have acquired their citizenship automatically, refer to Chapter 4 - Automatic acquisition of citizenship

was born prior to 26 January 1949 it may be necessary to determine if the parent acquired citizenship automatically under the historical transitional arrangements, refer to Chapter 24 - Historical transitional provisions

died prior to the applicant’s birth, refer to Death of the parent before birth

was an Australian citizen they may have subsequently lost that citizenship prior to the applicant’s birth, refer to Parent may have ceased to be a citizen.

If the applicant’s parent was an Australian citizen by descent, full Hague Convention or bilateral arrangement adoption at the time of the birth, the parent must have been present in Australia for a total of two years before the application, unless the applicant is not a citizen of another country and has never been a national or citizen of another country.

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Death of the parent before birth

Under s7 of the Act, if the parent has died before the applicant’s birth, the parent is taken to have the status they did before their death. This may require an assessment as to whether the parent may have lost their Australian citizenship sometime before their death.

Parent may have ceased to be a citizen

While the parent may have at one time held Australian citizenship it is important to determine if the parent was a citizen at the time of the applicant’s birth. There are a number of ways that a person may have ceased to be an Australian citizen. Refer to:



If the Australian citizen parent acquired the citizenship of another country after acquiring Australian citizenship and this occurred prior to 4 April 2002, an assessment must be made as to whether their Australian citizenship was lost prior to the applicant’s birth. Such losses will not always be recorded on departmental data bases. Refer to Section 17 - repealed on 4 April 2002.

If a parent lost Australian citizenship under s17 of the old Act prior to the birth of their child, their child will not be eligible to acquire citizenship by descent (unless they had another parent at the time of their birth who was an Australian citizen at that time), but they may be eligible to apply for citizenship by conferral under s21(6). Refer to Person born to former Australian citizen (s21(6)).

Character - descent applicants aged 18 and over

Sections 16(2) and 16(3) require that an applicant aged 18 or over be of good character if:

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

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

For further guidance on the ‘good character’ requirement, refer to Chapter 11 - Character.

Citizenship by descent under the old Act The provisions for Australian citizenship by descent under the old Act (that is, between 26 January 1949 and 30 June 2007) differed from those in the Act. Refer to:

Born on or after 26 January 1949 - old Act

Born before 26 January 1949 - old Act.

Born on or after 26 January 1949 - old Act

For guidance on the descent provisions in the old Act, refer to:

26 January 1949 to 21 November 1984

Between 22 November 1984 and 30 June 2007

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People born out of wedlock.

26 January 1949 to 21 November 1984

A person born overseas to an Australian citizen parent became an Australian citizen when the birth was registered at an Australian consulate. The requirements during the time were:

Between 26 January 1949 and 30 April 1970, s11 of the old Act required that:

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

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

except if:

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

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

Until 15 September 1975 the Territory of Papua was part of Australia for the purposes of the old Act.

Between 30 April 1970 and 21 November 1984, s11 of the old Act required that:

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

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

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

Until 15 September 1975 the Territory of Papua was part of Australia for the purposes of the old Act.

Between 22 November 1984 and 30 June 2007

Section 10B of the old Act required that a person born overseas to an Australian citizen parent be registered before the age of 18 years. From July 2002, the age limit for registration was 25 years.

Between 1991 and 30 June 2007, s11 of the old Act provided for registration by descent for people born overseas between 26 January 1949 and 15 January 1974.

People born out of wedlock

If a person was born out of wedlock, the registration referred only to the mother. If the birth was later legitimated under the Marriages Act 1961, regulation 12, the person could be re-registered.

The provision for the registration of people born to Australian mothers in wedlock was made retrospective, and allowed registration of people born to Australian mothers between 26 January 1949 and 30 April 1970.

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Born before 26 January 1949 - old Act

When the old Act came into effect on 26 January 1949, s25 provided for the automatic acquisition of citizenship for certain persons born overseas to a parent who automatically acquired Australian citizenship through s25 on 26 January 1949. These provisions are commonly referred to as the historical transitionals. For information regarding the historical transitional provisions, including those providing for the automatic acquisition of descent for certain persons, refer to Chapter 24 - Historical transitional provisions.

Prohibitions - Minister’s decision (s17) Section 17 of the Act sets out a number of circumstances where an applicant seeking to acquire Australian citizenship by descent must not be approved.

A person applying to acquire citizenship by descent must not be approved if one of the provisions in s17(3) to s17(5) of the Act is in place. An application must be refused if:

the decision maker is not satisfied of the person’s identity (s17(3)) - refer to Identity (s17(3)) or

the national security provisions apply (s17(4) to s17(4B)) - refer to National security (s17(4) to s17(4B)) or

the person ceased to be an Australian citizen at any time during the 12 months prior to application (cessation) (s17(5)) - refer to Cessation of citizenship (s17(5)).

Identity (s17(3))

Section 17(3) requires that the Minister must not approve the applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Refer to Chapter 13 - Identity.

National security (s17(4) to s17(4B))

The Minister must not approve a person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) that the person is directly or indirectly a risk to security.

The Minister must not approve a stateless person becoming an Australian citizen if the person has been convicted of a national security offence.

Refer to Chapter 12 - National security.

Cessation of citizenship (s17(5))

If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

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Application requirements - descent A person may make an application to become an Australian citizen by descent (s16(1)).

An application can only be considered it if meets the application requirements set out in s46 of the Act.

For information on the s46 application requirements, including information on forms, fees, invalid applications, translation requirements and required supporting documentation. Refer to Chapter 16 - Application requirements and valid applications.

Refer also to Fees for descent applicants.

Fees for descent applicants

Under regulation 12A, an application for Australian citizenship by descent must be accompanied by the fee mentioned in item 2 of Schedule 3.

If applications are made at the same time by two or more siblings, item 1 of Schedule 3 prescribes the fee for the first sibling and a reduced fee for the second and subsequent siblings.

Decision making - descent (s17) Section 17 sets out the Minister’s decision requirements. For guidance on the decision making obligations for citizenship by descent, refer to:

Must approve or refuse (s17(1))

Must not approve if not eligible (s17(1A))

Must refuse if a prohibition is in place (s17(3) to s17(5)).


An application for citizenship by descent must be approved or refused in writing. If an applicant meets the eligibility requirements and there is no prohibition on approval, they must be approved. They must also be given notice of the decision. Refer to Notification of decisions (s47) - descent.


A person must not be approved unless the eligibility criteria under s16(2) or s16(3) is satisfied (s17(1A)).

Must refuse if a prohibition is in place (s17(3) to s17(5))

A person must not be approved to become a citizen by descent if one of the provisions in s17(3) to s17(5) prohibit such an approval. Refer to Prohibitions - Minister’s decision (s17).

Notification of decisions (s47) - descent For information regarding notification requirements, refer to Notifications and notification periods.

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Review of decisions (s52) - descent Under s52(1) of the Act, a person may make an application to the AAT for review of a decision made under s17 to approve a person becoming an Australian citizen.

Refer also to Review of decisions and findings.

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Chapter 6 - Adopted children

Overview of adoption pathways to citizenship There are a number of different types of adoption and the adopted person’s path to citizenship will be determined by the type of adoption process they went through.

This chapter provides guidance:

about some of the different types of adoption processes that a person seeking to acquire Australian citizenship may have been adopted under. Refer to Summary of types of adoption

on the different types of citizenship provisions that an adopted person may acquire Australian citizenship under. Some adopted people:

will acquire citizenship automatically under s13 (Part 2, Division 1) of the Act. Refer to Citizenship by adoption in Australia (s13)

may be eligible to apply for citizenship under Part 2, Division 2 of the Act, through:

o Subdivision AA - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement. Refer to Adoptions - Hague Convention or bilateral arrangement (s19C) or

o Subdivision B - Citizenship by conferral. Refer to Citizenship by conferral for adopted persons.

A person born overseas who was adopted by an Australian citizen will not be eligible to acquire Australian citizenship by descent unless they also had a parent at the time of their birth who was an Australian citizen at the time that the person seeking to acquire citizenship was born.

This chapter also provides guidance on Guardianship of adopted child (until citizenship or other significant event).

Summary of types of adoption Refer to:

Simple Hague or bilateral adoptions finalised onshore

Full Hague Convention or bilateral arrangement adoptions

Expatriate adoptions

Domestic Adoptions.

Simple Hague or bilateral adoptions finalised onshore

Adoptions contracted offshore, finalised onshore.

Australian Adoption Authorities are usually involved.

Some bilateral arrangement and Hague Convention countries do not issue adoption compliance certificates. These are known as ‘simple’ Hague Convention adoptions.

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These adoptions are not recognised under Australian law unless and until they have been finalised in Australia.

The child requires a visa to enter Australia, usually a subclass 102 Adoption visa.

Australian citizenship is automatically acquired under s13 citizenship by adoption when the 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. Refer to Citizenship by adoption in Australia (s13).

If the adoption is not finalised in Australia an application may be made for citizenship by conferral under the conferral pathway that is applicable given the person’s age and circumstances (for example, a child under 18 years of age would apply to be considered against s21(5) of the Act). Refer to Citizenship by conferral for adopted persons.

Full Hague Convention or bilateral arrangement adoptions

Child is adopted offshore.

Australian adoption authorities are usually involved.

Child is adopted by Australian citizen/s under Hague Convention adoption arrangements for intercountry adoptions or a bilateral arrangement between Australia and another country. The adoption is finalised overseas with the issue of a valid adoption compliance certificate. One or more documents may be provided by authorities to meet requirements of an adoption compliance certificate. These are known as ‘full Hague’ convention adoptions.

The adoption is recognised under Australian law. Refer to the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 regulations 16 and 17.

Application may be made for Australian citizenship under Subdivision AA - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or bilateral arrangement. Section 19C sets out the application and eligibility requirements. A child adopted under a full Hague Convention or bilateral arrangement is not required to obtain a permanent visa to apply under this provision. Refer to Adoptions - Hague Convention or bilateral arrangement (s19C).

Expatriate adoptions

Generally offshore.

Child adopted overseas by Australian citizen/s 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 citizenship by conferral under the conferral pathway that is applicable given the person’s age and circumstances (for example, a child under 18 years of age would apply to be considered against s21(5) of the Act). Refer to Citizenship by conferral for adopted persons.

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Domestic Adoptions

Onshore.

Child is adopted in Australia by Australian citizen/s with the involvement of domestic Australian adoption authorities and under Australian law.

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

Guardianship of adopted child (until citizenship or other significant event) Children who enter Australia holding an Adoption visa where the adoption is to be finalised in Australia under bilateral arrangements (other than through the Republic of Korea and Taiwan) or a simple Hague Adoption, are officially under the guardianship of the Minister for Immigration and Border Protection. This guardianship is delegated to state and territory welfare authorities.

This arrangement is set down in the Immigration (Guardianship of Children) Act 1946 (the IGOC Act). The IGOC Act provides a framework for state and territory governments to supervise the adoption process in Australia and ensure that arrangements are in the best interests of the children.

The adoptive parent/s and the adoption/welfare authorities in the state or territory in which the family usually resides are advised when a decision is made on the child’s 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).

Citizenship by adoption in Australia (s13) Australian citizenship is automatically acquired under s13 when:

a child is adopted in Australia or an overseas adoption is finalised under Australian law and

the child is present in Australia as a permanent resident (refer to Permanent resident for citizenship)at the time the adoption is finalised and

at least one adoptive parent is an Australian citizen at the time of the adoption.

Section13 of the Act only applies to people adopted on or after 22 November 1984 (people adopted in Australia prior to 22 November 1984 may apply for Australian citizenship by conferral).

Section 13 is an operation of law provision. Although there is no decision to be made to approve or refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of s13, refer to Chapter 10 - Evidence of Australian citizenship.

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The adoption may be a domestic adoption (that is, child born and adopted in Australia) or an intercountry adoption (that is, child born outside Australia, but adoption finalised in Australia).

Section 13 would apply in the case of a domestic adoption where an Australian citizen adopts a permanent resident child. For example, a child born to a temporary resident is made available for adoption, acquires permanent residence, and is adopted by an Australian citizen under a law in force in a state or territory.

An intercountry adoption will usually involve a child brought to Australia on an adoption visa. After a period of time, usually 12 months after arrival in Australia, the adoptive parents apply to the relevant state or territory court for an adoption order. The date on which an Australian adoption order is made by the court is the date the child acquires Australian citizenship.

Intercountry adoption arrangements may include ‘bilateral arrangements’ or ‘simple’ Hague Convention adoption arrangements.

A ‘simple’ Hague Convention adoption occurs when a Convention country, although a party to the Hague convention, does not issue an adoption compliance certificate, certifying that the legal ties between an adopted child and their birth parents have been severed. The Convention country agrees that the child is allowed to be moved to Australia where the adoption can be finalised under Australian law. If the adoption is not finalised in Australia the child must apply for citizenship by conferral. Bilateral arrangement adoptions through the Republic of Korea and Taiwan are issued with an adoption compliance certificate and may apply for Australian citizenship overseas without first obtaining a permanent visa. Bilateral arrangement adoptions from countries that are not finalised overseas and are not issued with adoption compliance certificates (bilateral arrangement countries other than Republic of Korea and Taiwan) must apply for an Adoption visa (subclass 102) to enter Australia. Once the adoption is finalised in Australia under Australian law, the child automatically becomes an Australian citizen under s13 of the Act.

Section 13 does not apply to:

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

children adopted overseas (unless they are also legally adopted in Australia or that adoption is finalised under Australian law while the child is present in Australia as a permanent resident).

Refer also to: Citizenship by adoption (s13).

How to obtain evidence of citizenship

A person who acquired citizenship automatically through s13 of the Act may apply for evidence of their Australian citizenship. Refer to Chapter 10 - Evidence of Australian citizenship.

Adoptions - Hague Convention or bilateral arrangement (s19C) Refer to:

Overview of Subdivision AA - citizenship by full Hague or bilateral adoption

Adoptions other than Full Hague Convention adoptions

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Citizenship eligibility - full Hague Convention or bilateral arrangement adoption (s19C)

Prohibitions - Minister’s decision (s19D)

Application requirements - s19C adoption

Decision making - s19C adoption (s19D)

Notification of decision (s47) - s19C adoption

Review of decisions (s52) - s19C adoption.

Overview of Subdivision AA - citizenship by full Hague or bilateral adoption

Part 2, Division 2, Subdivision AA of the Act contains the legal requirements that apply to applicants for Australian citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement.

The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption commenced operation in Australia on 1 December 1998. Australian citizenship under these provisions is therefore only available for children adopted under the Hague Convention on or after 1 December 1998.

Provisions relating to Hague Convention adoptions were included in Australia’s citizenship laws for the first time when Subdivision AA was included in the Act from 1 July 2007, to provide a non-migration pathway to citizenship for persons who were adopted in accordance with the Hague Convention on Intercountry Adoption. At that time, adoptions through bilateral arrangements were not covered by Subdivision AA. Subdivision AA was amended from 25 February 2015 to also cover certain bilateral arrangement adoptions.

The structure of Subdivision AA is most similar to that of Subdivision A (descent), and it provides a pathway to citizenship for children who are adopted overseas by an Australian citizen parent under certain types of adoption arrangements. Subdivision AA allows children adopted in this manner to travel to Australia as an Australian citizen, and thereby removes the need for the child to obtain a passport of their home country and an adoption visa under the Migration Regulations.

The Australian Government Attorney-General’s Department has primary responsibility for the management and establishment of Australia’s intercountry adoption programmes and developing and maintaining intercountry adoption arrangements with other countries as the central authority for adoption programs in Australia. This responsibility is shared with state and territory authorities.

The list of countries with which Australia has an intercountry adoption program is subject to change and case officers should ensure they check the Attorney-General Department’s website for a full and up-to-date list of open programmes (at: www.ag.gov.au/FamiliesAndMarriage/IntercountryAdoption/Pages/default.aspx).

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Hague Convention adoptions which are considered ‘full’ Hague Convention adoptions are ones in which all legal ties between the adopted child and their birth parents have been severed. An adoption compliance certificate issued in accordance with the Hague Convention by the adoption authorities of the other Convention country, usually the child’s birth country, is evidence of a full Hague Convention adoption. Once the certificate has been issued, the adoption is recognised in Australia under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (regulations 16 and 17 refer). There is no need for the adoptive parents to seek further recognition of the adoption under Australian law.

An Australian citizen who resides in, or who is also a citizen of, a Hague Convention country other than Australia, may adopt a child from a third country that is also a party to the Hague Convention on Intercountry Adoption. This is known as a ‘Hague Convention Third Country’ adoption. If an adoption compliance certificate has been issued and the eligibility criteria for s19C can be satisfied, the child may be able to be approved to acquire citizenship under Subdivision AA. Refer to Citizenship eligibility - full Hague Convention or bilateral arrangement adoption (s19C). Otherwise, the adopted child must apply for citizenship by conferral. Refer to Citizenship by conferral for adopted persons.

Refer also to:

Registration (s19E)

Day citizenship begins (s19F)

Extract certificates - Adoption.

Registration (s19E)

Under s19E of the Act and regulation 6 of the Regulations, if the person is approved to become an Australian citizen by descent a record of the person’s acquisition of Australian citizenship must be made and included on the department’s system.

Day citizenship begins (s19F)

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

Extract certificates - Adoption

People who acquire citizenship by meeting the eligibility requirements for s19C (citizenship for person’s adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement) are issued with a citizenship extract certificate. Refer to Extract certificates.

Adoptions other than Full Hague Convention adoptions

Not all Hague Convention countries are involved in full Hague Convention adoption arrangements. Each member country must have ratified the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption and produce an adoption compliance certificate in respect of the adoption. An adoption cannot be considered a full Hague Convention adoption without the issuance of a valid adoption compliance certificate by the origin country.

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A ‘simple’ Hague adoption occurs when a Convention country, although a party to the Hague Convention, does not issue an adoption compliance certificate, certifying that the legal ties between an adopted child and their birth parents have been severed. The Convention country agrees that the child is allowed to be moved to Australia where the adoption can be finalised under Australian law. Children adopted under these arrangements may automatically become Australian citizens following the completion of the adoption process in Australia. Refer to Guardianship of adopted child (until citizenship or other significant event).

Those adopted to whom an adoption compliance certificate was not issued (as defined under the Intercountry Adoption Regulations) or children adopted privately by Australian citizens from a country that is not a party to the Hague Convention on Intercountry Adoption may apply for citizenship by conferral once they are a permanent resident. Following amendments to the Act on 9 November 2009, to be eligible for Australian citizenship a person under the age of 18 applying for Australian citizenship by conferral under s21(5) must be a permanent resident (that is, they must have activated their permanent visa by entering Australia) at the time of application and at the time of decision.

Citizenship eligibility - full Hague Convention or bilateral arrangement adoption (s19C)

If a person applies to acquire citizenship because they have been adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangements, they must satisfy the eligibility criteria set out in s19C of the Act.

When considering whether a person satisfied the eligibility criteria set out in s19C it is important to consider whether:

the applicant was adopted in a Convention country or a prescribed overseas jurisdiction

an adopter was an Australian citizen at the time of adoption - refer to Status of the adopter and

if the Australian citizen adopter themselves acquired their citizenship through descent or these provisions, the adopter had been lawfully present in Australia for a total period of at least 2 years at any time before the applicant made the application

an adoption compliance certificate in the country in which the adoption took place is in force for the adoption. Refer to Adoption compliance certificates

the adoption is recognised and effective for the laws of the Commonwealth and each state and territory

the legal relationship between the applicant and the individuals who were the applicant’s parents immediately before the adoption has been terminated

the applicant, if aged 18 or over at the time of application, is of good character - refer to Chapter 11 - Character.

Applicants aged 18 years or over are eligible only if their adoption was agreed to by the adoption authorities of the two Hague Convention countries or the bilateral arrangement countries (currently only Taiwan and South Korea) before the person turned 18 years of age. The age limit is specified in Article 3 of the Hague Convention.

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The program with the Federal Democratic Republic of Ethiopia was closed in 2012. Children adopted under this program prior to its closure are also eligible to apply for Australian citizenship under these provisions.

To be approved and subsequently acquire citizenship, in addition to satisfying the eligibility criteria in s19C, the person must also not be prohibited from being approved. Refer to Prohibitions - Minister’s decision (s19D).

Status of the adopter

It is necessary to determine the citizenship status of the adopter at the time of the adoption. For the purposes of s19C, for example, an applicant would not satisfy the eligibility criteria if:

the adopter acquired Australian citizenship after the applicant’s adoption or

the adopter had previously been an Australian citizen, but had ceased to be an Australian citizen prior to the adoption of the applicant.

If the claimed Australian citizen adopting parent:

acquired their Australian citizenship by descent, ‘full’ Hague Convention or bilateral arrangement adoption, they must have been lawfully present in Australia for at least two years at any time before their adoptive child made their application

acquired their citizenship by descent, ‘full’ Hague Convention or bilateral arrangement adoption, and then ceased and later (prior to the applicant’s adoption) resumed their citizenship, the adoptive parent must have been lawfully present in Australia (although not necessarily as a citizen) for a total of at least two years at any time before the person’s application is made. Section 32(2) provides that a person resumes the same kind of citizenship as that held before ceasing to be an Australian citizen. Refer to Same kind of citizenship (s32(2) to s32(3))

may have acquired their citizenship automatically. Refer to Chapter 4 - Automatic acquisition of citizenship

was born prior to 26 January 1949 it may be necessary to determine if the parent acquired citizenship automatically under the historical transitional arrangements. Refer to Chapter 24 - Historical transitional provisions

was an Australian citizen they may have subsequently lost that citizenship prior to the applicant’s birth. Refer to Adopter may have ceased to be a citizen.

Adopter may have ceased to be a citizen

While the adopter may have at one time held Australian citizenship it is important to determine if the adopter was a citizen at the time of the applicant’s adoption. There are a number of ways that a person may have ceased to be an Australian citizen. See:



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Adoption compliance certificates

An adoption compliance certificate issued for a Hague Convention adoption must comply with Article 23 of the Hague Convention. Depending on whether the adoption is a Hague Convention or bilateral arrangement adoption, an ‘adoption compliance certificate’ may consist of more than one document. For a:

Hague Convention adoption, the adoption compliance certificate is issued by the country’s central authority and names the receiving country’s central authority

bilateral arrangement adoption from a prescribed country (the Federal Democratic Republic of Ethiopia, the Republic of Korea, and Taiwan) an adoption compliance certificate is issued by that country’s intercountry adoption authority and may include the court adoption order or a letter from a government department.

Prohibitions - Minister’s decision (s19D)

Section 19D of the Act sets out a number of circumstances where an applicant seeking to acquire citizenship under Subdivision AA of the Act (by adoption in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement adoption) must not be approved.

A person applying to acquire citizenship under Subdivision AA must not be approved if one of the provisions in s19D(4) to s19D(8) of the Act is in place. An application must be refused if:

the decision maker is not satisfied of the person’s identity (s19D(4)). Refer to Identity (s19D(4) or

the national security provisions apply (s19D(5) to s19D(7A)). Refer to National security (s19D(5) to s19D(7A)) or

the person ceased to be an Australian citizen at any time during the 12 months prior to application (cessation) (s19D(8)). Refer to Cessation of citizenship (s19D(8)).

Identity (s19D(4))

Section 17(3) requires that the Minister must not approve the applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the person.


National security (s19D(5) to s19D(7A))

The Minister must not approve a person becoming an Australian citizen at a time when an adverse security assessment or a qualified security assessment in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) that the person is directly or indirectly a risk to security

The Minister must not approve a stateless person becoming an Australian citizen if the person has been convicted of either a national security offence, or an offence against an Australia law or a foreign law, for which the person was sentenced to at least 5 years imprisonment.

If the person is a stateless person who was born outside Australia to a parent who was an Australian citizen at the time of the person’s birth, the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

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Cessation of citizenship (s19D(8))

If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

Application requirements - s19C adoption

A person may make an application to become an Australian citizen by adoption in accordance with the Hague Convention on Intercountry Adoption or bilateral arrangement adoption (s19C(1)).

An application can only be considered it if meets the application requirements set out in s46 of the Act. For information on the s46 application requirements, including information on forms, fees, invalid applications, translation requirements, and required supporting documentation. Refer to Chapter 16 - Application requirements and valid applications.

Refer also to Fees for s19C adoption applicants.

Fees for s19C adoption applicants

Under regulation 12A, an application under s19C of the Act for Australian citizenship must be accompanied by the fee mentioned in item 4 of Schedule 3.

If applications are made at the same time by two or more siblings, item 3 of Schedule 3 prescribes the fee for the first sibling and a reduced fee for the second and subsequent siblings.

Decision making - s19C adoption (s19D)

An application for citizenship for a person adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement must be approved or refused. If an applicant meets the eligibility requirements and there is no prohibition on approval, the application would generally be approved. They must also be given notice of the decision.

Section 19D sets out the Minister’s decision requirements.

See:

Must approve or refuse (s19D(1))

Must not approve if not eligible (s19D(2))

May refuse to approve an eligible person (s19D(3))

Must refuse if a prohibition is in place (s19D(4) to s19D(8)).

Must approve or refuse (s19D(1))

An application for citizenship by s19C adoption must be approved or refused in writing. If an applicant meets the eligibility requirements and there is no prohibition on approval, they must be approved. They must also be given notice of the decision. Refer to Notification of decision (s47) - s19C adoption.

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Must not approve if not eligible (s19D(2))

A person must not be approved unless the eligibility criteria under s19C is satisfied (s19D(2)).

May refuse to approve an eligible person (s19D(3))

A decision may be made under s19D(3) to refuse to approve a person who is eligible to become an Australian citizen s19C.

Must refuse if a prohibition is in place (s19D(4) to s19D(8))

A person must not be approved to become a citizen again if one of the provisions in s19D(4) to s19D(8) prohibit such an approval. Refer to Prohibitions - Minister’s decision (s19D).

Notification of decision (s47) - s19C adoption

For information regarding notification requirements, refer to Notifications and notification periods.

Review of decisions (s52) - s19C adoption

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

Refer also to, Review of decisions and findings.

Citizenship by conferral for adopted persons The most common circumstances in which an adopted person applies for citizenship by conferral will be for children who are aged under 18 years who have been adopted overseas by an Australian citizen parent (expatriate adoptions) under arrangements that do not involve Australian adoption authorities. If the adoption has been arranged outside of Hague Convention or bilateral arrangements or no valid adoption compliance certificate has been issued, the adopted child will need to apply for citizenship by conferral.

Following amendments to the Act on 9 November 2009, a person under the age of 18 applying for Australian citizenship by conferral under s21(5) must be a permanent resident (that is, they must have activated their permanent visa by entering Australia) at the time of application and at the time of decision to be eligible for Australian citizenship.

Adopted person who are aged 18 years or over, who wish to acquire citizenship by conferral must apply for conferral and be assessed against the conferral eligibility criteria that is applicable to their age and circumstances. Refer to Chapter 7 - Citizenship by conferral.

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Chapter 7 - Citizenship by conferral

Overview of conferral The requirements for Australian citizenship by conferral (formerly called citizenship by grant in the old Act) are set out in Part 2, Division 2 (Subdivision B) of the Act.

Most migrants acquire Australian citizenship through one of the conferral pathways. There are seven conferral pathways set out in s21 of the Act, and each has its own set of eligibility criteria which must be satisfied:

General eligibility (s21(2))

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

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

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


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

Person born in Papua (s21(7))

Statelessness (s21(8))

Eligibility for conferral.

Most migrants aged 18 to 59 years obtain Australian citizenship through the general eligibility pathway (s21(2)). The conferral pathways set out in s21(3), (4), (5), (6), (7) and (8), are commonly referred to as the ‘other’ conferral pathways. For information on the eligibility for each conferral pathway, refer to Eligibility for conferral.

In addition to the various eligibility criteria set out in s21 of the Act, there are a range of prohibition provisions set out in s24 that must be considered. These provisions, set out in s24(3) to s24(8) of the Act specify that a person must not be approved in certain circumstances, such as when the delegated decision maker is not satisfied of the person’s identity. Refer to Prohibitions - Minister’s decision (s24).

For information on conferral specific application requirements, refer to Application requirements (s21, s46).

For information about conferral specific decision making obligations, refer to Decision making - conferral (s24).

Requirements for becoming a citizen (s20)

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

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Day citizenship begins (s28)

Children under the age of 16 years at the time of application are not required to make a pledge of commitment. For persons acquiring Australian citizenship by conferral, the day on which citizenship begins is as follows:

general eligibility, s21(2) - day pledge is made

permanent or enduring physical or mental incapacity, s21(3) - day application is approved

person aged over 60 or has a hearing speech or sight impairment, s21(4) - day pledge is made

child under 16 years at application who applied in their own right, s21(5) - day application is approved

child under 16 years who applied at the same time as responsible parent when both child and responsible parent were approved, s21(5) - day the responsible parent becomes a citizen

child under 16 years who applied at the same time as responsible parent when child is approved but responsible parent is refused, s21(5) - day application is approved

child aged 16 or 17 years at the time of application, s21(5) - day pledge is made

person born to former Australian citizen s21(6) - day application is approved

person born in Papua before 16 September 1975 to an Australian born parent, s21(7) - day application is approved.

Eligibility for conferral Under s24(1A) the applicant must not be approved unless they satisfy the eligibility criteria for the relevant conferral pathways under s21(2), (3), (4), (5), (6), (7) or (8).

See:

General eligibility (s21(2))

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

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

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


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

Person born in Papua (s21(7))

Statelessness (s21(8)).


General eligibility (s21(2)) Persons seeking to acquire citizenship through the general eligibility pathway must satisfy the criteria set out in s21(2). Including:

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being aged 18 years or over (s21(2)(a)) at time of application. Applicants aged 60 years and over are eligible to apply for conferral through s21(4) and would not be required to sit and pass the test if they seek to acquire through s21(4) rather than s21(2).

being a permanent resident at the time of application and decision (s21(2)(b). Refer to Permanent resident for conferral

satisfying a residence requirement (s21(2)(c). Refer to Residence requirement

understanding the nature of the application (s21(2)(d)) - satisfied by passing the test (s21(2A)). Refer to Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f)

possessing a basic knowledge of the English language (s21(2)(e) - satisfied by passing the test (s21(2A)). Refer to Knowledge of English language and Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f)

having an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (s21(2)(f) - satisfied by passing the test (s21(2A)). Refer to Knowledge of Australia and the citizenship responsibilities and privileges and Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f)

being likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved (s21(2)(g)). Refer to Likely to reside / close and continuing association

being of good character at the time of the decision (s21(2)(h)). Refer to Good character.


Permanent resident for conferral Section 5 of the Act defines permanent resident - refer to Definition of permanent resident.

See:

Current PR requirements for conferral

Permanent resident requirements under s21(5)

When permanent resident visa ceases prior to decision

Applications for s21(2), s21(3), s21(4) - 7 October 2008

Applications for s21(2), s21(3), s21(4) - 1 July 2007 to 6 October 2008

s21(5) from 9 November 2009

s21(5) from 1 July 2007 to 8 November 2009.

Current PR requirements for conferral

The permanent resident eligibility criteria for conferral applicants has changed over time:

from 7 October 2008, under s21(2), s21(3), s21(4) and s21(5), applicants are required to be permanent residents at the time of application and at the time of decision. Refer to Applications for s21(2), s21(3), s21(4) - 7 October 2008

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between 1 July 2007 and 6 October 2008, under s21(2), s21(3) and s21(4) applicants were required to be permanent residents at the time of application, but while policy required a person to also be a permanent resident at the time of decision that requirement was not included in the Act. Refer to Applications for s21(2), s21(3), s21(4) - 1 July 2007 to 6 October 2008

from 1 July 2007 to 8 November 2009 applicants under s21(5) were expected under policy to be permanent resident at the time of application only. Refer to Permanent resident requirements under s21(5).

For information regarding permanent resident status for citizenship purposes. Refer to Permanent resident for citizenship.

Certain New Zealand citizens who do not hold a permanent visa under the Migration Act may be considered to be a permanent resident for the purposes of the Act. Refer to Permanent resident status of New Zealand citizens.

Conferral applicants who need to satisfy the residence requirement to be eligible for citizenship, specifically those seeking to meet the requirement by satisfying the general residence requirement (s22), or one of the two special residence requirements (s22A or s22B), also need to have been present in Australia is a permanent resident for a period of time as specified in the residence requirement provisions. Refer to Chapter 7A - Residence Requirement.

A person must be a permanent resident to be eligible to sit any form of the citizenship test. Refer to Chapter 7B - Citizenship test.

If the person is required to make the pledge in order to acquire citizenship and they have not yet done so, their approval may be cancelled under s25 if they are no longer a permanent resident. Refer to Minister may cancel approval (s25).

Permanent resident requirements under s21(5)

Prior to 9 November 2009, there was no legal requirement for a person under the age of 18 years applying for Australian citizenship by conferral under s21(5) to be a permanent resident. However, under policy most persons applying under s21(5) were required to be a permanent resident at the time of application. At that time, applicants who were not permanent residents at the time of application could have been refused under s24(2).

When permanent resident visa ceases prior to decision

The permanent resident eligibility criteria for conferral applicants has changed over time:

from 7 October 2008, under s21(2), s21(3), s21(4) and s21(5), applicants are required to be permanent residents at the time of application and at the time of decision. Refer to Applications for s21(2), s21(3), s21(4) - 7 October 2008

between 1 July 2007 and 6 October 2008, under s21(2), s21(3) and s21(4) applicants were required to be permanent residents at the time of application, but while policy required a person to also be a permanent resident at the time of decision that requirement was not included in the Act. Refer to Applications for s21(2), s21(3), s21(4) - 1 July 2007 to 6 October 2008

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from 1 July 2007 to 8 November 2009 applicants under s21(5) were expected under policy to be permanent resident at the time of application only. Refer to s21(5) from 9 November 2009 and s21(5) from 1 July 2007 to 8 November 2009.

Applications for s21(2), s21(3), s21(4) - 7 October 2008 to present

Applicants for Australian citizenship by conferral under s21(2), 21(3) and 21(4), lodged on or after 7 October 2008, are required to be permanent residents at the time they apply and at the time of decision. If the applicant ceases to be a permanent resident before the decision on their application they must be refused citizenship.

Applications for s21(2), s21(3), s21(4) - 1 July 2007 to 6 October 2008

Prior to 7 October 2008, applicants for conferral under s21(2), s21(3) and s21(4) were required to be permanent residents at the time of application under the Act, but not at the time of decision. However, under policy they were expected to be permanent residents at the time of decision.

If an applicant’s permanent visa ceases or is cancelled consideration of refusal under s24(2) is appropriate.

In considering whether to exercise this discretion, decision makers must consider the full circumstances of the case to determine whether the application warrants approval despite no longer being a permanent resident. Applicants must be given the opportunity to provide reasons why the application should not be refused and these should be fully considered.

Circumstances that may be considered include, but are not limited to:

why the applicant’s permanent visa ceased

the extent of an applicant’s connection with Australia

the applicant’s situation in Australia (such as employment and community involvement)

the applicant’s 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.

s21(5) from 9 November 2009

Applicants for Australian citizenship by conferral under s21(5) lodged on or after 9 November 2009, are required to be permanent residents at the time they apply and at the time of decision.

s21(5) from 1 July 2007 to 8 November 2009

Prior to 9 November 2009, there was no legal requirement for a person under the age of 18 years applying for Australian citizenship by conferral under s21(5) to be a permanent resident, however, under policy most persons applying under s21(5) were required to be a permanent resident at the time of application. Applicants who were not permanent residents at the time of application could have been refused under s24(2).

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Residence requirement Applicants for citizenship by conferral under the general eligibility pathway (s21(2)), s21(3), s21(4) and under policy for applicants aged 16 or 17 years applying under s21(5), must satisfy a residence requirement. From 21 September 2009, two special residence requirements were added into the Act.

Most applicants will be required to meet the general residence requirement (s22). However, a person will meet the residence requirement if they satisfy any of the four residence requirements set out in the Act. Refer to Chapter 7A - Residence Requirement.

Knowledge of English language The requirement for citizenship applicants to ‘possess a basic knowledge of the English language’ is understood as having a sufficient knowledge of English to be able to live independently in the wider Australian community.

People who are seeking to acquire citizenship through the general eligibility criteria at s21(2)(e) of the Act are taken to have satisfied the criteria if they have successfully passed the citizenship test. Refer to Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f).

Knowledge of Australia and the citizenship responsibilities and privileges The requirement to have an ‘adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ is linked to the concepts and information people need to understand in order to make the pledge of commitment.

People who are seeking to acquire citizenship through the general eligibility criteria at s21(2)(f) of the Act are taken to have satisfied the criteria if they have successfully passed the citizenship test. Refer to Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f).

For further information about the responsibilities and privileges of Australian citizenship refer to Responsibilities and privileges of citizenship.

Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f) Under s21(2A) the requirements that the applicant ‘understands the nature of the application’, ‘possesses a basic knowledge of the English language’ and ‘has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ can only be satisfied by the successful completion of a test. For further details refer to Chapter 7B - Citizenship test.

Likely to reside / close and continuing association Applicants are expected to be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if their application is approved, if they are seeking to acquire Australian citizenship by conferral by satisfying the eligibility criteria for:

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general eligibility (s21(2))

permanent enduring physical or mental incapacity (s21(3))

aged over 60 or has a hearing, speech or sight impairment (s21(4))

or

by satisfying the policy guidelines relating to applicants aged 16 or 17 years seeking to acquire through s21(5).

In addition, applicants seeking to satisfy the general residence requirement (s22) by having the Ministerial discretion relating to:

spouses, de factor partners or surviving spouses or de facto partners of Australian citizens (s22(9)) or

persons in an interdependent relationship with an Australian citizen

are only eligible for the Ministerial discretion to be applied if the decision maker is satisfied that the person had a close and continuing association with Australia during the period of absence in question.

If after approval, the applicant is required to make a pledge to commence citizenship and has not yet done so (that is, the person has been approved, but not yet acquired), the decision maker may cancel the person’s approval under s25 if the person is, among other criteria, not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with 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 applicant’s intentions unless there is information to the contrary.

Likely to reside, or continue to reside in Australia

Intention to reside should be investigated further in situations where:

the applicant has spent significant periods outside of Australia since becoming a permanent resident or

has requested a citizenship test or citizenship ceremony be conducted overseas.

If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia. Officers should note that the applicant must meet either likely to reside, or continue to reside, in Australia OR maintain a close and continuing association with Australia, not both, to meet requirements of this provision.

Maintain a close and continuing association with Australia

Factors that may contribute to a close and continuing association with Australia include:

Australian citizen spouse or de facto partner

Australian citizen children

length of relationship with Australian citizen spouse or de facto partner

extended family in Australia

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return visits to Australia

periods of residence in Australia

intention to reside in Australia

employment in Australia (for example, public or private sector)

ownership of property in Australia and

evidence of income tax payment in Australia.

Good character The Act requires that all applicants aged 18 years and over be of good character at the time of the decision on the application. Refer to Chapter 11 - Character, for further information on the assessment of good character.

Overseas penal certificates - conferral

For the consideration of good character, applicants who have spent 12 months or more outside Australia and more than 90 days in any one country since becoming a permanent resident, need to provide overseas penal certificates from each country (other than Australia) in which they spent more than 90 days.

Where a decision maker has a concern regarding the travel and/or character or an applicant, an overseas penal certificate can be requested even if the person has not spent more than 90 days in any one country since becoming a permanent resident.

Overseas penal certificates are not required for periods spent overseas under the age of 18 years when holding permanent resident status.

Interaction with the offence prohibition

In addition to considerations of good character, consideration must be given to whether there is a prohibition to approval, refer to Prohibitions - Minister’s decision (s24) and Offences (s24(6)).

Permanent or enduring physical or mental incapacity (s21(3)) For applications received before 9 November 2009 for consideration under s21(3), refer to the Act and the policy guidance (ACIs) in place immediately before 9 November 2009.

For applications received on or after 9 November 2009 for consideration under s21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:

understanding the nature of their application

demonstrating a basic knowledge of the English language or

demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

See:

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Physical incapacity

Mental incapacity

General Practitioners.

To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.

A temporary physical or mental condition does not meet the requirement.

In addition to the permanent or enduring physical or mental incapacity criteria, a person seeking to acquire citizenship through s21(3) of the Act is required to:

be aged 18 or over at the time of application

be a permanent resident at time of application and decision, refer to Permanent resident for conferral

satisfy the residence requirements, refer to Residence requirement

be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved, refer to Likely to reside / close and continuing association and

be of good character at the time of the Minister’s decision on the application, refer to Good character.

The department may also seek its own independent professional advice regarding the claimed permanent or enduring physical or mental incapacity.

Consideration must also be given to whether there is a prohibition to approval. Refer to Prohibitions - Minister’s decision (s24).

Physical incapacity

Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner. The specialist must also be a fellow of a specialist organisation as defined in Schedule 4 of the Health Insurance Regulations 1975 (which may be found on the AustLii website (www.austlii.edu.au/) or the Federal Register of Legislation website (www.legislation.gov.au).

Mental incapacity

Applicants claiming permanent or enduring mental incapacity may provide evidence from a:

psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or

medical practitioner who is a fellow of the Australian Society of Psychological Medicine or

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psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.

Specialist’s qualifications can be confirmed 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.

General Practitioners

General practitioners 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.

Person aged 60 or over (s21(4)(i)) A person aged 60 or over seeking to acquire citizenship through s21(4) of the Act is required to:

be aged 60 or over at the time of application (applicant must provide official evidence of their age, see the requirements on the application form and Section 46 requirements for guidance on the types of evidence to be provided)


understand the nature of the application at the time the application is made

satisfy the residence requirements, refer to Residence requirement




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Interviews for people aged 60 and over

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 may be made to not ask 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.

Although clients aged 60 years and over are not required to sit a citizenship test, they are to be invited to attend an interview as part of the assessment of identity.

If a decision is made that an applicant is not required to attend an interview care must be taken to ensure that applicants who are not able to take the pledge in English are identified and appropriate interpreter ceremonies arranged.

In cases where an interview was not conducted consideration must still be given to whether there is a prohibition to approval (refer to Prohibitions - Minister’s decision (s24)). If an applicant does not meet these requirements, the application must be refused.

Person with hearing, speech or sight impairment (s21(4)(a)(ii)) Applicants aged 18 and over claiming to have permanent loss or substantial impairment to their hearing, speech or sight are required to:


understand the nature of the application at the time they make the application

meet the residence requirements, refer to Residence requirement




Unlike applicants under s21(2), applicants under s21(4) are not required to demonstrate a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. This means they do not need to pass the citizenship test or attend an interview to demonstrate these qualities.

Applicants aged under 18

Applicants aged under 18, regardless of whether they claim to have permanent loss or substantial impairment to their hearing, speech or sight, are not eligible under s21(4) due to their age and should be assessed under s21(5).

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Evidence of permanent loss or substantial impairment to hearing, speech or sight

Applicants under s21(4)(a)(ii) must provide evidence of permanent loss or substantial impairment to their hearing, speech or sight. Such evidence may include, but is not limited to:

evidence from a specialist medical or allied health practitioner registered in Australia

evidence that the client is registered with the Office of Hearing Services as having complex rehabilitation needs

some concession cards.


When was application received

For applications received before 9 November 2009, refer to the Act and ACIs in effect immediately before 9 November 2009.

For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa by entering Australia or by being granted the permanent visa while onshore) at the time of application and at the time of decision to be eligible for Australian citizenship.

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 meets the legislative eligibility criteria under s21(5) (being aged under 18 years and being a permanent resident at the time of application and decision), but 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 in this chapter.


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 under 18 at the time of decision on the application and the child is living in Australia. Refer to Chapter 22 - Best interests of the child.

Applicants under the age of 16 (s21(5)) A child aged under 16 can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s46(2A).

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In the case of an applicant who does not meet the policy guidelines in this chapter, 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.

If an applicant is under 16 a responsible parent is to sign the application form.

Children under 16 applying individually in their own right

Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and under policy also are:

under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or

usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or

under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (refer to Significant hardship or disadvantage / detriment) or

an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application (refer to IGOC minors (s21(5))) or

an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application (refer to Non-IGOC minors (s21(5))).


Children under 16 applying on the same form and at the same time as a responsible parent

Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also:

be living in Australia with the relevant responsible parent and

the relevant responsible parent consented to the inclusion of the child in their application.


Note: Decision makers must make a separate decision record for each applicant included on the application if the application is to be refused.

Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed in their own right.

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Applicants aged 16 or 17 (s21(5)) Applicants aged 16 or 17 at time of application must make an application on a form that contains no other application.

Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also:

satisfy the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). Refer to Residence requirement and Significant hardship or disadvantage / detriment

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 and

is likely to reside or continue to reside, or maintain a close and continuing association with Australia.

Applicants aged 16 or 17 at time of application should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship, and that they possess a basic knowledge of the English language. It is important that an applicant’s ability to understand and respond to questions is not hampered by the use of complex words or sentences.

Applicants aged 16 or 17 do not need the consent of a responsible parent for the purposes of making their application. However, a responsible parent must sign the application form to provide consent for the department to provide the applicant’s personal information to the National Police Checking Service (NPCS) for the purposes of the NPCS conducting a National Police check in relation to the applicant as part of their application for the purposes of assessing whether an offence provision (s24(6) of the Act) applies to the applicant.


Following consideration of the circumstances of the case, including the best interests of the child (refer to Chapter 22 - Best interests of the child), some applicants may warrant approval despite their case not aligning with information contained in this chapter.

IGOC minors (s21(5)) Under the Immigration (Guardianship of Children) Act 1946 (IGOC Act), the Minister is the legal guardian of a non-citizen child who:

under 18 years old and

at the time of their arrival in Australia intended to become a permanent resident of Australia and

did not enter Australia in the charge of, or for the purpose of living in Australia under the care of a parent, a relative who has turned 21 years of age or an intending adoptive parent of the child.

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The department refers to children who fall under the guardianship of the Minister as IGOC minors. IGOC minors were previously referred to as wards of the Minister.

Who may apply on behalf of an IGOC Minor

Only the Minister’s delegated guardian for the purposes of the IGOC Act has the authority to apply for citizenship by conferral on behalf of an IGOC minor. The delegated guardian may be an officer in the department or an officer from the relevant state/territory child welfare agency (SCWA).

Citizenship applications from IGOC Minors aged 15 and under should be signed by the Minister’s delegated guardian. Citizenship applications from IGOC minors aged 16 and 17 should be signed by the applicant and a letter of consent from the Minister’s delegated guardian should be provided with the application.

IGOC minors cannot be included in their carer’s citizenship application because the carer does not meet the definition of responsible parent.

Non-IGOC minors (s21(5)) If an unaccompanied minor (UAM) does not fall under the operation of the IGOC Act they are referred to as non-IGOC minors because the IGOC Act does not specify who the minor’s guardian is and does not provide for the appointment of another person as guardian. UAMs who do not fall under the guardianship of the Minister are referred to as non-IGOC Minors.

Non-IGOC minors were previously referred to as unaccompanied humanitarian minor (UHM) non-wards.

Who may apply on behalf of a non-IGOC Minor

Applications made in the minor’s own right

Citizenship applications from non-IGOC minors aged 15 and under should be signed by their responsible carer. Citizenship applications from non-IGOC minor aged 16 or 17 should be signed by the applicant and a letter of consent from their responsible carer should be provided with the application. The application should be supported by evidence that a Commonwealth, state/territory government agency recognises that the carer has daily responsibility for the care and control of the non-IGOC minor.

Applications on the same form as a responsible parent

Non-IGOC minors can be included in their carer’s citizenship application if the carer meets the definition of responsible parent under the Act. Evidence demonstrating this is required.

Person born to former Australian citizen (s21(6)) A person seeking to acquire citizenship by conferral by satisfying the eligibility criteria under s21(6) of the Act must:

have been born outside Australia, refer to Born outside Australia

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have had a parent who was not an Australian citizen at the time of the applicant’s birth because that parent ceased to be a citizen under s17 of the old Act before the time of the applicant’s birth, refer to Parent’s loss of citizenship and

be of good character at the time of the Minister’s decision on the application if the person was aged 18 or over at the time they made their application, refer to Good character.


Born outside Australia

The definition of Australia for the purposes of s21(6) is the definition of Australia at the time of the person’s birth. For example, a person born in Papua prior to 16 September 1975 was not born outside Australia because Papua was part of Australia for the purposes of the old Act until PNG Independence on 16 September 1975. Refer to Australia and the external territories.

Parent’s loss of citizenship

Prior to 22 November 1984, an adult ceased to be an Australian citizen under s17 of the old Act if they were outside Australia and acquired the citizenship of another country as a result of a voluntary and formal act other than marriage.

Between 22 November 1984 and 2 April 2002 an adult ceased to be an Australian citizen under s17 of the old Act regardless of whether they were inside out outside Australia and did an act or thing, the sole or dominant purpose of which was to acquire the citizenship of another country.

Section 17 was repealed on 4 April 2002. Refer to Section 17 - repealed on 4 April 2002.

If parent lost citizenship while a child

If the parent of the applicant lost their Australian citizenship as a child (under 21 prior to 1 December 1973 or under 18 since that date) then the applicant will not be eligible for conferral under this provision.

Refer to Historical cessation provisions for further details.

Person born in Papua New Guinea (PNG)

A person born outside Australia may be eligible for citizenship by conferral under s21(6) of the Act 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). Prior to PNG Independence on 16 September 1975, Papua was part of Australia, but New Guinea was not.

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 (the date that s17 of the Act was repealed). Such declarations were usually made within a short period after PNG Independence.

Refer also to Chapter 19 - Papua, New Guinea, and Papua New Guinea.

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Person born in Papua (s21(7)) A person born in Papua, between 26 January 1949 and 16 September 1975, may be eligible to acquire Australian citizenship by conferral under s21(7) if:

they had a parent who was born in Australia as geographically defined at the time the person makes their application (refer to Australia and the external territories) and

that parent was an Australian citizen at the time of the person’s birth and

they are of good character at the time of the decision.


Statelessness (s21(8)) A person who meets the eligibility requirements set out in s21(8) of the Act may be approved to acquire citizenship if there are no prohibitions to approval. Refer to Prohibitions - Minister’s decision (s24).

British and Maltese former child migrants Applications received from British and Maltese former child migrants who entered Australia between 22 September 1947 and 31 December 1967 inclusive, and were wards of the Minister under the Immigration (Guardianship of Children) Act 1946, should have their application processed as a priority.

Under regulation 12A, applications for citizenship by British and Maltese former child migrants must be accompanied by the fee mentioned in item 6 of Schedule 3 (currently ‘Nil’).

Evidence of their former child migrant status must accompany their application for Australian citizenship.

Prohibitions - Minister’s decision (s24) Section 24 of the Act contains a number of prohibition provisions for conferral, whereby, a person must not be approved in certain situations. An applicant for conferral must not be approved if one of the provisions in s24(3) to s24(8) of the Act is in place. An application must be refused if:

the decision maker is not satisfied of the person’s identity (s24(3)), refer to Identity (s24(3))

the national security provisions apply (s24(4) to s24(4D)), refer to National security (s24(4) to s24(4D))

the person is not present Australia at the time of decision if required to be under s24(5), refer to If the applicant is not in Australia at the time an application is approved (s24(5))

one of the offence provisions (s24(6)) is in place, refer to Offences (s24(6)) or

the person had ceased to be an Australian citizen at any time during the 12 months prior to application (cessation) (s24(7)), refer to Cessation of citizenship (s24(7)).

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Section 24(8) of the Minister’s decision provisions provide that the prohibition provisions in s24(6) (offences) and s24(7) (cessation) do not apply if the person is covered by s21(8) (conferral pathway relating to statelessness).

Identity (s24(3))

Section 24(3) requires that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.


National security (s24(4) to s24(4D))





If the applicant is not in Australia at the time an application is approved (s24(5))

An application for citizenship by conferral made under:

s21(2) (general eligibility)

s21(3) (permanent or enduring physical or mental incapacity) or

s21(4) (person aged 60 or over or has hearing, speech or sight impairment)

must not be approved if the applicant is not in Australia at the time the decision is to be made.

Interaction with the residence requirements and discretions

Section 24(5) of the Act does not apply if:

the applicant satisfied one of the special residence requirements (s22A or s22B). Refer to Special residence requirement - activities of benefit to Australia (s22A) and Special residence requirement - work requiring regular travel outside Australia (s22B) or

the applicant satisfied the s22(9) (spouse, de facto partner or surviving spouses or de facto partner of Australian citizen) or s22(11) (person in an interdependent relationship) ministerial discretions to the general residence requirement.

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Note: If the applicant does not need the s22(9) or s22(11) discretion to be applied in order to meet the general residence requirement, but they are overseas at the time of decision, the s22(9) or s22(11) discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets all criteria. Refer to Ministerial discretion - Spouses and de facto partners (s22(9) and s22(10)) and Ministerial discretion - Interdependent relationships (s22(11)).

Offences (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 Definitions.

Note: Decisions made regarding the offence prohibition provisions in s24(6) of the Act are separate to decisions made in relation to the ‘good character’ eligibility criteria for applicants for conferral, however, if a person meets one of the offence prohibitions consideration should also be given as to whether the person can be considered to be of good character. Refer to Good character and Chapter 11 - Character.

Section 24(6)(a) - proceedings pending

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.

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

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the applicant has been found guilty by a court, but released on conditions relating to the applicant’s behaviour (such as a good behaviour bond - these cases fall under s24(6)(f) or s24(6)(g)).

Section 24(6)(b) - confined in prison

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) - 2 year period after serious prison sentence

If required, refer to Definitions for further guidance in relation to the terms:

confined to a prison and

serious prison sentence.

If an applicant has been confined to a prison because of a serious prison sentence, an application for citizenship by conferral must not be approved for two years after the person has been released from prison.

Section 24(6)(d) - 10 year period if a serious repeat offender

If required, refer to Definitions for further guidance in relation to the terms:

confined to a prison

serious prison sentence and

serious repeat offender.

If an applicant has been:

confined to a prison because of a serious prison sentence

released and

confined to a prison again for another serious prison sentence for an offence committed after the release from the first 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) - if released on parole or licence

Before the completion of a term of imprisonment, a person can be released from prison ‘on parole’ or ‘licence’ to serve the remainder of their sentence outside of prison. If the person breaches a condition of their parole or their licence, action can be taken against the person under an Australian law to require them to serve the whole or a part of the balance of the term of imprisonment.

Under s24(6)(e) an application for Australian citizenship by conferral must not be approved at any time during which a person is on parole or licence.

Sections 24(6)(f) and 24(6)(g) - person gave a security

The following definitions are relevant to these sections:

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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 (refer to recognizance) to satisfy the orders of the court.

sureties

Sureties are people who make themselves answerable for another’s actions. In the criminal law context, a surety is a person who enters into a (usually written) undertaking that he or she will forfeit a specified sum of money (or other security) if another person fails to comply with an undertaking that that other person has entered into.

recognizance

In criminal law, a ‘recognizance’ is an ‘acknowledgment’. A ‘recognizance to be of good behaviour’ is an undertaking given by an offender to a sentencing court to be of good behaviour.

Section 24(6)(f) applies where:

a person has been convicted of an offence against an Australian law and sentenced to imprisonment, but the person has been released by a court from serving all or part of that sentence

the person’s 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 s24(6)(f) and (g) apply.

If all the conditions are met, an application for Australian citizenship by conferral must not be approved at a time when action under an Australian law can be taken against the person because they have breached a condition of the security.

For example, if a person has been released by a 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.

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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.

Section 24(6)(h) - confined in psychiatric institution

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))

A person must not be approved to acquire citizenship by conferral if they ceased to be a citizen less than 12 months prior to the date of decision. Section 24(7) does not apply to applicants who are stateless and covered by s21(8).

Application requirements (s21, s46) A person may make an application to become an Australian citizen (s21(1)).


For information on the s46 application requirements, including information on forms, fees, invalid applications, translation requirements, and required supporting documentation, refer to Chapter 16 - Application requirements and valid applications.

Approved forms - conferral

The approved forms for conferral provide for children under the age of 16 years to be included on a responsible parent’s application. For information on decision making requirements for the included applicant/s, refer to Included applicants - conferral. For information about the definition of responsible parent, refer to Definitions.

Fees for conferral applicants

Under regulation 12A, an application for Australian citizenship by conferral must be accompanied by the relevant fee mentioned in Schedule 3 of the Regulations.

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The citizenship application fees increased on 1 January 2016. If an applicant paid a fee in connection with an application for citizenship (refer to s46) before 1 January 2016 and is subsequently entitled to a refund, they must be refunded the amount specified by the regulations in force at the time the fee was paid.

Decision making - conferral (s24)


If a person makes an application under s21, a decision in writing must be made to approve or refuse the person becoming an Australian citizen (s24(1)).

Included applicants - conferral

Children aged under 16 years may apply individually on their own application form, or be included on the application form of a responsible parent (s46(2A)). Refer to Chapter 21 - Responsible parent.

All applicants aged 16 years and over must apply individually.

There are no dependent applicants under the citizenship laws. Each person included on an application form is an applicant in their own right. An individual decision to approve or refuse must be made regarding each applicant included on the application, based on consideration of all factors relating to that individual applicant’s application.


A person must not be approved to become an Australian citizen by conferral unless the eligibility criteria under s21(2), (3), (4), (5), (6), (7) or (8) are satisfied (s24(1A)).

May refuse to approve an eligible person (s24(2))

A decision may be made under s24(2) to refuse to approve a person who is eligible to become an Australian citizen under s21(2), (3), (4), (5), (6), (7) or (8).

The Minister’s discretion under s24(2) may be exercised in cases where the applicant does meet the legislative requirements but does not meet the policy guidelines. For example this discretion:

may be used to refuse approval under s21(2), 21(3) or 21(4), lodged prior to 7 October 2008, where the applicant’s permanent visa ceased or was cancelled prior to decision (refer to When permanent resident visa ceases prior to decision) or

would be used to refuse approval under s21(5) where the applicant is aged under 18 years but does not align with the policy.

Must not be approved if a prohibition is in place (s24(3) to s24(8))

A person must not be approved for citizenship by conferral if one of the provisions in s24(3) to s24(8) prohibit such an approval. Refer to Prohibitions - Minister’s decision (s24).

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Deferral of decision not possible

Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain circumstances. The current Act does not allow for the deferral of decisions. However, it is possible instead to delay the making of the pledge of commitment under s26(3) of the Act. Refer to Delayed making of pledge (s26(3) to s26(6)).

Minister may cancel approval (s25)

Under s25, approval of citizenship given under s24 of the Act may be cancelled in prescribed circumstances.

In the case of people who have been given approval on the basis of meeting the general eligibility requirements (s21(2)), or the requirements relating to people aged 60 or over or with hearing, speech or sight impairment (21(4)), as set out in s25(2) the approval may be cancelled if the person is no longer:

a permanent resident

likely to reside, or continue to reside, in Australia or to maintain close and continuing association with Australia or

of good character.

In the case of people who are required to make a pledge of commitment, approval may be cancelled if the person has not made the pledge within 12 months of receiving notice of approval. The approval may not be cancelled if the reason for failing to make the pledge is one of the prescribed reasons given in regulation 7. Refer to Prescribed reasons for failing to make pledge.

Children under the age of 16 are not required to make the pledge of commitment. However, approval of citizenship given to a child may be cancelled if their application was made at the same time as a responsible parent and if the approval given to the responsible parent has been cancelled.

Before an approval of an application for Australian citizenship is cancelled because of failure to make the pledge, a notice of intention to cancel is to be provided to the applicant.

Decision records For information regarding decision records, refer to Decision records.

Notification of decisions (s47) For information regarding notification requirements, refer to Notifications and notification periods.

Review of decisions (s52) Under s52 of the Act, a person may make an application to the AAT for review of:

a decision made under s24 of the Act to refuse to approve a person becoming an Australian citizen by conferral, if:

the person is under 18 or

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the person is 18 or over and the decision to refuse was based on s21(8) (about statelessness) or

the person is 18 or over and is a permanent resident, and the decision to refuse was not based on s21(8) of the Act and

a decision made under s25 of the Act to cancel an approval given to a person under s24 of the Act (that is, a decision to cancel a conferral approval).

Refer also to, Review of decisions and findings.

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Chapter 7A - Residence Requirement

Who has to meet the residence requirement Applicants seeking to acquire citizenship by conferral by meeting the eligibility criteria for:

s21(2) - general eligibility

s21(3) - permanent or enduring physical or mental incapacity and

s21(4) - person aged 60 or over or has hearing, speech or sight impairment

must satisfy one of the four residence requirements set out in the Act at the time that they make their application.

Also note that there is policy associated with s21(5) for applicants aged 16 or 17 years. Refer to Applicants aged 16 or 17 (s21(5)).

The different residence requirements A person will meet the residence requirement if, at the time they apply, they satisfy one of the four residence requirements set out in the Act:

General residence requirement (s22)

Special residence requirement - activities of benefit to Australia (s22A)

Special residence requirement - work requiring regular travel outside Australia (s22B)

Defence Service Requirement (s23).

Which residence requirement applies Most conferral applicants will be required to satisfy the general residence requirement set out in s22 of the Act - refer to General residence requirement (s22).

For applications received on or after 21 September 2009, some applicants who need to travel regularly outside of Australia because of their professions, and cannot meet the general residence requirement, should be assessed against the requirements of the relevant special residence requirement. See:

Special residence requirement - activities of benefit to Australia (s22A)

Special residence requirement - work requiring regular travel outside Australia (s22B).

Applicants who have completed relevant defence service (in the Australian Permanent Forces or Australian Reserves), and some members of the family unit of a person who has completed relevant defence service, should instead be assessed against the Defence Service Requirement (s23). Refer to Defence Service Requirement (s23).

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Exemptions and discretions to the residence requirements There is a partial exemption and a number of ministerial discretions that can be applied to assist a person to satisfy part of the general residence requirement, refer to Partial exemption to the general residence requirement (s22(2)) and Discretions to the general residence requirement.

There are also a number of separate ministerial discretions that can be applied to assist a person to satisfy part of the:

Discretions to the s22A special residence requirement

Discretions to the s22B special residence requirement.

There are no exemptions or discretions that can be applied to assist a person to satisfy the s23 defence service requirement.

Residence requirements in the old Act The residence requirement under the old Act for citizenship by grant (the term used for conferral under the old Act) was different to that included in the Act. Also it varied over time and for different categories of applicants.

Immediately prior to the introduction of the Act on 1 July 2007, the residence requirement for grant of Australian citizenship (set out in s13 of the old Act) was presence in Australia as a permanent resident for a period/s totalling not less than:

one year in the two years immediately prior to application and

two years in the five years immediately prior to application

referred to commonly as the ‘1 in 2, 2 in 5’ requirement.

For guidance on the residence requirement prior to 1 July 2007, refer to the legislation and associated policy guidance that was in place at the time.

General residence requirement (s22) Section 22 sets out the general residence requirement. The general residence requirement came into effect from 1 July 2007 with the introduction of the Act.

A person who satisfies the general residence requirement in s22 is taken to have met the residence requirement for the purposes of:

s21(2)(c) - general eligibility

s21(3)(c) - permanent or enduring physical or mental incapacity

s21(4)(d) - person aged 60 or over or has hearing, speech or sight impairment

policy associated with s21(5) for applicants aged 16 or 17.

There is a partial exemption and a number of ministerial discretions that may be applied to certain applicants to assist them to satisfy parts of the general residence requirement. These are set out in s22(2) to s22(11). Refer to Partial exemption to the general residence requirement (s22(2)) and Discretions to the general residence requirement.

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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. For the definition of lawful presence / residence, refer to Definitions.

To satisfy the general residence requirement in s22, a person must not have been present in Australia as an unlawful non-citizen at any time during the four year period immediately prior to applying for Australian citizenship. For the definition of an unlawful non-citizen, refer to Definitions.

Transitional Act arrangements

Item 5B to schedule 3of the Transitional Act sets out the residence requirement (including applicable discretions and exemptions that could be applied) that people were to meet if they were permanent residents immediately prior to 1 July 2007 and they applied for citizenship before 1 July 2010.

Item 7 to schedule 3 of the Transitional Act sets out the residence requirement (including applicable discretions and exemptions that could be applied)that people were to meet if they were permanent residents immediately prior to 1 July 2007 and they applied for citizenship before 1 July 2007.

A person who met the requirements set out in item 5B or item 7 to schedule 3 of the Transitional Act is taken to have satisfied the general residence requirement in s22 of the Act.

Presence in Australia

Presence in Australia for citizenship purposes is not determined by the Migration Act. A person is present in Australia for citizenship purposes if they are physically present in Australia, as defined in s3 of the Act.

Overseas absences (s22(1A) and s22(1B))

Section 22(1A) allows for absences from Australia of up to 12 months within the four years immediately before applying for citizenship. A period of time cannot be counted as an absence from Australia unless the person has already been present in Australia. This means that a person does not meet the residence requirement if they have three years continuous presence in Australia (with the last 12 months as a permanent resident) unless they were previously in Australia.

Section 22(1B) allows a person to be absent for up to 90 days within the 12 months permanent residence immediately before applying providing they remain a permanent resident during this time. Before 15 March 2009, applicants were allowed three (calendar) months absence during the 12 month permanent residence period.

Confinement in prison or psychiatric institution (s22(1C))

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.

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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 person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement. Refer to Ministerial discretion - Confinement in prison or psychiatric institution (s22(5A)).

People working on ships or aircraft

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).

If absent from Australia on the day four years immediately before applying

If a person’s first arrival in Australia is less than four years before they apply for citizenship, they cannot meet the general residence requirement, even if they spend three years continuously in Australia.

The start date of the four-year lawful residence period is usually the date four 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 four years after their first entry to meet this requirement.

Where a person was outside Australia on the day four years immediately before applying, but had previously been in Australia as the holder of a permanent visa, they may still use the day four years immediately before applying as a start date (for the purposes of being eligible to satisfy the four year lawful requirement), providing that on that day they held a permanent visa.

If these conditions are met, then the person may use the full four year period immediately before applying towards meeting the general residence requirement.

Calculations for New Zealand citizens

Unlike most other visas, the Special Category visa (SCV) (subclass 444) ceases immediately when a person leaves Australia, and the person therefore does not hold a visa while outside Australia. To ensure New Zealanders are not disadvantaged by virtue of the unique status they hold under the Migration Act the calculation of the four-year lawful residence period is different to that of other nationals.

New Zealand citizens who were outside Australia four years immediately before applying for citizenship, but had previously entered Australia on a SCV at any time within eight years before lodging their application, may count the four years before lodging their application towards the general residence requirement.

New Zealand citizens who hold a SCV are no longer considered as permanent residents for Australian citizenship purposes, unless:

they were in Australia on 26 February 2001 as holders of a SCV or

were outside Australia on 26 February 2001 but were in Australia as the holder of a SCV for one or more period totalling 12 months in the two years prior to 26 February 2001 or

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did not fall within the above two categories but have a Centrelink certificate, issued under the Social Security Act 1991, that states that the person was, for the purposes of social security, residing in Australia on a particular date.

Partial exemption to the general residence requirement (s22(2)) There is a partial exemption set out in s22(2) that may be applied to certain applicants to assist them to satisfy the general residence requirement.

The partial exemption in s22(2) only applies to the general residence requirement in s22. It cannot be used to assist a person to satisfy the s22A or s22B special residence requirements, or the defence service requirement in s23.

Under s22(2), applicants who were born in Australia or are former Australian citizens need only have been present in Australia as a permanent resident for 12 months immediately before the application. Absences from Australia in that period of no more than 90 days are allowed (s22(1B) refers).

Under s24(7) a former citizen cannot be approved for Australian citizenship by conferral unless more than 12 months have passed from the date upon which the person ceased, or last ceased, to be an Australian citizen. Some former Australian citizens may also be eligible to apply for resumption of Australian citizenship. Refer to Chapter 8 - Resuming citizenship.

Discretions to the general residence requirement There are a number of ministerial discretions that may be applied to certain applicants to assist them to satisfy parts of the s22 general residence requirement. These are set out in s22(4A) to s22(11).

These ministerial discretions apply only to the s22 general residence requirement and cannot be used to assist a person to satisfy the s22A or s22B special residence requirements, or the defence service requirement in s23.

Ministerial discretion - Confinement in prison or psychiatric institution (s22(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 person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement.

Circumstances that may be taken into account are not prescribed in citizenship legislation therefore any information that an applicant puts forward must be considered. It is envisaged that the circumstances where this discretion may be exercised include:

convictions quashed (set aside by the court)

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a pardon, that is, a free and absolute pardon granted because the person was wrongly convicted.

Statement to be provided

Applicants seeking exercise of the residence requirement ministerial discretion under s22(5A) - confinement in prison or psychiatric institution will also need to provide a statement giving reasons as to why it would be unreasonable not to take those periods into account.

Ministerial discretion - Administrative error (s22(4A) and s22(5))

Under s22(4A) and (5) the Minister has a discretion to count for the purposes of s22(1)(b) and (c) (respectively) periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met (the specific sections do not apply to people who were permanent residents immediately before 1 July 2007 - in these circumstances use s5B of Schedule 3 of the Transitional Act apply instead).

Under s22(4A) the Minister ‘… may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period’.

Under s22(5) the Minister ‘... may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.

The discretion can only be exercised on condition that the legal status is absent ‘... because of an administrative error’. The condition can be divided into two parts:

there must be an administrative error (in other words, an error of a particular kind) and

the error must be the reason why the person lacks the necessary legal status (in other words, the error is the cause).

See:

Definitions for further guidance on lawful presence / residence and unlawful non-citizen status

Administrative error.

Ministerial discretion - 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. Refer to Significant hardship or disadvantage / detriment.

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.

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Use of this discretion may be appropriate for persons who have become permanent residents of Norfolk Island. Until 1 July 2016 Norfolk Island had its own migration legislation (the Norfolk Island Immigration Act 1980) which required that a person must have been ordinarily resident in Norfolk Island for five years in the past seven years to be eligible for permanent residence. As such, it is considered that such a person would suffer significant disadvantage compared with other applicants for citizenship by conferral if they were required to spend a further period of time as a permanent resident to satisfy the residence requirement.

If an applicant satisfies all the requirements under s21 except the residence requirements, but has spent the appropriate periods in Norfolk Island as a temporary resident prior to being granted permanent residence of Norfolk Island, use of this provision would be appropriate. Such a person would not be expected to show further evidence of hardship or disadvantage for this discretion to be exercised. Further information on arrangements regarding Norfolk Island, refer to Norfolk Island.

Statement to be provided

Applicants seeking exercise of the residence requirement ministerial discretion under s22(6) - significant hardship or disadvantage will also need to provide a supporting statement concerning the significant hardship or disadvantage that would be suffered by the applicant if the discretion was not exercised and they could not become an Australian citizen.

Ministerial discretion - Spouses and de facto partners (s22(9) and s22(10))

From 15 March 2009, the same-sex de facto partner of an Australian citizen who is seeking a residence discretion should be assessed against the criteria at s22(9) of the Act, and not s22(11), as was the case previously.

Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.

The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:

the applicant was the spouse or de facto partner of a person who was an Australian citizen and

the applicant was a permanent resident and

the applicant had a close and continuing association with Australia.

If the applicant is the surviving spouse or de facto partner of an Australian citizen and is applying for discretion on that basis, they must not have entered into another spouse/de facto relationship after the death of their spouse/de facto partner in order for the time to be counted.

In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:

evidence that the person migrated to and established a home in Australia prior to the period overseas


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long term relationship with Australian citizen spouse or de facto partner


regular return visits to Australia

regular periods of residence in Australia


the person has been on leave from employment in Australia while accompanying their spouse or partner overseas

ownership of property in Australia

evidence of income tax paid in Australia over the past four year and

evidence of active participation in Australian community based activities or organisations.

In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.

Evidence to be provided for s22(9)

Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) - spouse, de facto partner or surviving spouse or de factor partner of an Australian citizen will also need to provide:

evidence of their spouse’s, or de facto partner’s, 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 1901lists 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.

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 spouse’s, or de facto partner’s, death, if applicable.

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Interaction with s24(5) - Person not present in Australia

If the applicant does not need the discretion to be applied in order to meet the general residence requirement but is overseas at the time of decision, the s22(9) discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets the criteria.

Ministerial discretion - Interdependent relationships (s22(11))

From 15 March 2009, the discretion at s22(11) applies only to people who are in an interdependent relationship other than a same-sex de facto relationship. The same-sex de facto partner of an Australian citizen is now able to access the discretion at s22(9) of the Act.

Under s22(11) periods spent overseas by a permanent resident who was granted their permanent visa because they were in an interdependent relationship with an Australian citizen and is still in that interdependent relationship at the time of making the application, can be counted as periods of permanent residence in Australia for the purposes of s22(1)(c) of the Act.

The discretion to treat periods spent overseas by the applicant as periods during which the person was present in Australia as a permanent resident can only be applied to periods when:

the applicant was a permanent resident and

the applicant was still in the same interdependent relationship with the Australian citizen and

the applicant had a close and continuing association with Australia (refer to below).

In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:


long term relationship with Australian citizen interdependent partner


regular return visits to Australia

regular periods of residence in Australia


employment in Australia where the person has been on leave to accompany their spouse overseas

ownership of property in Australia

evidence of income tax paid in Australia over the past four years and

evidence of active participation in Australian community based activities or organisations.

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.

Evidence to be provided for s22(11)

Applicants seeking exercise of the residence requirement ministerial discretion under s22(11) - interdependent relationship with an Australian citizen will also need to provide:

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evidence of their interdependent partner’s 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.

Interaction with s24(5) - Person not present in Australia

If the applicant is the interdependent partner of an Australian citizen and they are overseas at the time of decision, this discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets the criteria. The s22(11) discretion may be applied for the purposes of s24(5) if the applicant is not present in Australia even though the discretion may not be required for the purposes of meeting the general residence requirement.

Special residence requirements (s22A and s22B) From 21 September 2009, the Act was amended, by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009, to include two special residence requirements to provide an accelerated residence pathway to citizenship for:

people who need to be an Australian citizen to engage in activities of benefit to Australia (s22A) - refer to Special residence requirement - activities of benefit to Australia (s22A), and

people whose work requires them to travel regularly outside Australia (s22B) - refer to Special residence requirement - work requiring regular travel outside Australia (s22B).

The activities and organisations specified for the purposes of s22A, and the kinds of work specified for the purposes of s22B, are set out in the Special Residence Requirement legislative instrument made under s22C of the Act.

Special residence requirement - activities of benefit to Australia (s22A) A person meets the s22A 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 Minister’s instrument under s22C(1) and have the support of an organisation specified in the Minister’s instrument under s22C(2). Currently the actives are limited to:

employment which requires a high-level security clearance in a department, an executive agency or a statutory agency of the Commonwealth or

participation in the Olympic games (including the winter, summer and Paralympic competitions and qualifying events) or

participation in the Davis Cup or Fed Cup competitions, including qualifying events.

The organisations currently specified for the purposes of s22A(1)(b) include:

Any department, executive agency or statutory agency of the Commonwealth

The Australian Olympic Committee

Australian Paralympic Committee and

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Tennis Australia.

For the purposes of s22A(1)(b), a holder of a senior position in a Commonwealth agency should be at SES Band 2 level or above.

If a person is seeking to engage in an activity that is not listed in s22C(1), or does not have the support of an organisation specified for the purposes of 22A(1)(b) that is listed in the instrument, they do not meet the special residence requirement.

A person only meets this special residence discretion if they are required to be an Australian citizen in order to engage in the relevant activity (s22A(1)(a)(iii)), and there is insufficient time for them to meet the general residence requirement before they can engage in the activity (s22A(1)(a)(iv)). These requirements would normally be confirmed in their letter of support from the relevant organisation.

To meet this special residence requirement, during the two year period immediately before they submitted their application, a person must also have been:

ordinarily resident in Australia (refer to Ordinarily resident)

a permanent resident of Australia (refer to Permanent resident for citizenship)

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 (refer to Definitions).

Discretions to the s22A special residence requirement There are three ministerial discretions that can be applied to assist an applicant satisfy the special residence requirement set out in s22A of the Act.

Note: The ministerial discretions to the s22 general residence requirement, and the ministerial discretions to the s22B special residence requirement, cannot be applied to assist a person to satisfy the s22A special residence requirement.

There are no exemptions or partial exemptions that apply to the s22A special residence requirement.

Ministerial discretion - Alternative residence requirements (s22A(1A))

From 21 June 2013 the Act was amended, by the Australian Citizenship Amendment (Special Residence Requirements) Act 2013, to provide the Minister with personal, non-compellable powers to apply an alternative residence requirement in favour of a conferral applicant who requires Australian citizenship to engage in an activity that would be of benefit to Australia but who is unable to meet the general residence requirement in s22 of the Act or the special residence requirement set out in s22A of the Act. The alternative residence requirement to the s22B special residence requirement was inserted into the Act at the same time.

The alternative residence requirements set out at subsections 22A(1A) to (1B) are a discretion to the section 22A Special Residence Requirement (Person engaging in activities that are of benefit to Australia).

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Under s22B(1A), the Minister may determine that paragraphs 22A(1)(d) to (g) do not apply in relation to the person.

The discretion to make such a determination has not been delegated by the Minister.

Ministerial discretion - Confinement in prison or psychiatric institution (s22A(2) and s22A(3))

Under s22A(2), if a person has been confined in a prison or in a psychiatric institution in relation to a criminal offence at any time, that person will need to spend two years in Australia since last being released from that confinement before being residentially eligible for citizenship.

However, s22A(3) provides that s22A(2) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement.

Circumstances that may be taken into account are not prescribed in citizenship legislation therefore any information that an applicant puts forward must be considered. It is envisaged that where this discretion may be exercised include:

convictions quashed (set aside by the court)


Ministerial discretion - Administrative error (s22A(4) and s22A(5))

Under s22A(4) and (5) the Minister has a discretion to count for the purposes of s22A(1)(f) and (g) periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met. Under s22A(4) the Minister ‘... may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the applicant was not a permanent resident during that period.

Under s22A(5) the Minister ‘…may treat a period as one in which the applicant was not present in Australian as an unlawful non-citizen if the Minister considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period’. The discretion can only be exercised on condition that the legal status is absent ‘... because of an administrative error’.

For guidance regarding considerations of administrative error, refer to Administrative error.

Special residence requirement - work requiring regular travel outside Australia (s22B) A person is eligible for the s22B 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 Minster’s Instrument under s22C(3). If a person is engaged in work which is not of a kind specified in the Minister’s Instrument under s22C(3), they do not meet this special residence requirement.

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To meet this special residence requirement, during the four year period immediately before they submitted their application, a person must also have been:

engaged for at least two years in that kind or work

ordinarily resident in Australia (refer to Ordinarily resident), with the last 12 months as a permanent resident of Australia (refer to Permanent resident for citizenship)

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 and

not have been present in Australia as an unlawful non-citizen (refer to Definitions).

Discretions to the s22B special residence requirement There are three ministerial discretions that can be applied to assist an applicant satisfy the special residence requirement set out in s22B of the Act.

Note that the ministerial discretions to the s22 general residence requirement, and the ministerial discretions to the s22A special residence requirement, cannot be applied to assist a person to satisfy the s22B special residence requirement.

There are no exemptions or partial exemptions that apply to the s22B special residence requirement.

Ministerial discretion - Alternative residence requirements (s22B(1A))

From 21 June 2013 the Act was amended, by the Australian Citizenship Amendment (Special Residence Requirements) Act 2013, to provide the Minister with personal, non-compellable powers to apply alternative residence requirements in favour of a conferral applicant who is engaged in work of a specified kind which is of benefit to Australia and for which the person is required to regularly travel outside Australia but who is unable to meet the general residence requirement in s22 of the Act or the special residence requirement set out in s22B of the Act. The alternative residence requirement to the s22A special residence requirement was inserted into the Act at the same time.

The alternative residence requirements set out at subsections 22B(1A) to (1B) are a discretion to the section 22B Special Residence Requirement (Persons engaged in particular kinds of work requiring regular travel outside Australia).

Under s22B(1A), the Minister may determine that paragraphs 22B(1)(c) to (g) do not apply in relation to the person.

The discretion to make such a determination has not been delegated by the Minister.

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Ministerial discretion - Confinement in prison or psychiatric institution (s22B(2) and s22B(3))

Under s22B(2), if a person has been confined in a prison or in a psychiatric institution in relation to a criminal offence at any time, that person will need to spend at least 480 days in Australia during the period of four years in Australia since last being released from that confinement before being residentially eligible for citizenship.

However, s22B(3) provides that s22B(2) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement.

Circumstances that may be taken into account are not listed in the Act therefore any information that an applicant puts forward must be considered. It is envisaged that the circumstances where this discretion may be exercised include:

convictions quashed (set aside by a court)


Ministerial discretion - Administrative error (s22B(4) and s22B(5))

Under s22B(4) and (5) the Minister has a discretion to count for the purposes of s22A(1)(f) and (g) periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met.

Under s22B(4) the Minister ‘... may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the applicant was not a permanent resident during that period.

Under s22B(5) the Minister ‘…may treat a period as one in which the applicant was not present in Australian as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period’.

The discretion can only be exercised on condition that the legal status is absent “... because of an administrative error”.

For guidance regarding considerations of administrative error, refer to Administrative error.

Defence Service Requirement (s23) A person who satisfies the defence service requirement in section 23 is taken to have met the residence requirement, by demonstrating they

have completed relevant defence service (s23(1)) or

are a member of the family unit of a person who

has completed relevant defence service (s23(2)) or

died while undertaking service in the permanent forces or reserves (s23(3)).

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Relevant defence service

Relevant defence service is defined in s23(4).

A person undertakes service in the permanent forces or the reserves only if the person is appointed (as an officer), enlisted (in the other ranks) or transferred (as an officer or other rank) into any of the permanent forces or the reserves.

Schedule 3 of the Transitional Act provides ‘Defence service’ includes service in:

the permanent forces of the Commonwealth because of a notice under s26 of the National Service Act 1951 as in force at any time before 26 November 1964 and

the Naval Reserve, the Army Reserve or Air Force Reserve or in any reserve force that is a predecessor (whether immediate or otherwise) of the Naval Reserve, the Army Reserve or Air Force Reserve.

Service in the permanent forces is calculated on calendar days. Service in the reserve forces includes only those days on which the service person was required for, attended and was entitled to be paid for duty.

Service that is not relevant defence service

Not all defence related service is relevant defence service. Some examples of forms of service or employment that are not relevant defence service are:

service in the Australian Defence Force Cadets and predecessor organisations

engagement by the Australian Defence Force as a contractor or locally engaged employee, either in Australia or overseas, including as an interpreter or guide

service by a member of the forces of another country seconded to, or on duty with, the permanent forces or the reserve forces unless that person is a permanent resident of Australia and meets the definition of service in s23(4).

Evidence of relevant defence service

Applicants claiming that they have completed relevant defence service in accordance with s23 must provide evidence which clearly outlines the service completed, or medical discharge papers if applicable.

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

Amendments introduced in 2013

The Act was amended by the Australian Citizenship Amendment (Defence Families) Act 2012, with effect from 1 January 2013 to allow certain family members of current and future overseas lateral recruits to the Australian Defence Forces (ADF) to satisfy the relevant defence service residence requirement and be eligible for conferral of Australian citizenship at the same time as the enlisted ADF member.

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The amendments also enable family members of overseas lateral recruits to the ADF to satisfy the relevant defence service residence requirement and be eligible for conferral of Australian citizenship where the enlisted ADF member dies while undertaking service in the permanent forces or the reserves.

The amendments do not extend the defence service residence requirement to family members of every person who has completed relevant defence service.

The amendments to the Act apply to:

applications received on or after 1 January 2013 and

applications received but not finally determined as of that date.

The requirement for members of the family unit

An applicant is able to meet the defence service requirement if:

the applicant is a member of the family unit of a defence person and

the defence person has completed relevant defence service or died while undertaking service in the permanent or reserve forces and

the defence person was granted, on or after 1 July 2007, one of the following visas as prescribed by the regulations:

Employer Nomination (Permanent) (Class EN)

Labour Agreement (Migrant) (Class AU)

Labour Agreement (Residence) (Class BV)

Regional Employer Nomination (Permanent) (Class RN) and

the applicant was a member of the family unit of the defence person when the defence person was granted the visa and

the applicant holds a visa of that kind because the applicant is a member of the family unit of the defence person.

These requirements reflect the policy intent that the reduced residency period under the defence service requirement be available only to those family members of an overseas lateral recruit who migrate as a family unit with that recruit.

Member of the family unit has the same meaning as in the Migration Act.

Identity declaration requirements

An applicant who meets the defence service requirement may provide an identity declaration made by a person who has not known the applicant for 12 months or more. Overseas Lateral Recruits are recruited by the ADF to skilled and/or senior positions and the ADF requires them to obtain citizenship as soon as possible. This means the recruit may not have known any Australian citizen for the 12 months required under policy. They will, however, have gone through the ADF recruitment process and the visa process in the recent past and there is little risk associated with the declaration being made by someone who has known them for less than 12 months, particularly where the declarant is the recruit’s commanding officer, who likely occupies a position of trust and is familiar with the recruit’s background.

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Fees for people who meet the defence service requirement

There is a nil fee for applicants who have completed relevant defence service (item 6 of schedule 3 to the Regulations).

Members of the family unit are required to pay the citizenship application fee.

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Chapter 7B - Citizenship test

Overview of the citizenship test The purpose of the citizenship test is to assess whether a person who is seeking to acquire Australian citizenship under the conferral general eligibility criteria in s21(2) of the Act understands the nature of the application they are making, whether they have an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language and therefore meets certain legal requirements for the conferral of citizenship. The citizenship test is based on the values within the pledge of commitment.

There is an expectation that when a person makes an application for conferral of citizenship, they have made that application believing that they will meet all the legal requirements. This includes an expectation that they will pass a test if it is a requirement for them to do so.

It is expected that a person who applies for citizenship by conferral (under the general eligibility criteria set out in s21(2)) will successfully complete a citizenship test because they will have acquired the knowledge to do so prior to applying for citizenship. It is however accepted that not everyone will pass a citizenship test on their first attempt.

Background to the citizenship test People seeking to become Australian citizens by naturalisation / grant under the old Act, and the majority of those seeking to acquire citizenship by conferral under the Act have always been required to demonstrate a certain level of English language proficiency and an adequate knowledge of the responsibilities and privileges of Australian citizenship. Prior to the introduction of the test in 2007, applicants attended an interview where these criteria were assessed verbally.

The citizenship test was introduced into the Act from 1 October 2007 to provide a more objective method of deciding whether these criteria have been met. It was a result of a public consultation process, and has been subsequently amended following review.

Amendments to the test from 2009

Following the review a number of changes to the citizenship test and application process were implemented, including:

a new citizenship test and test resource guide which both began on 19 October 2009

a change to the application process from 9 November 2009, whereby a person was not eligible to sit the test unless they had first made a valid application for Australian citizenship by conferral. From 1 October 2007 to 8 November 2009, persons seeking to acquire Australian citizenship by conferral by satisfying the general eligibility criteria set out in s21(2) of the Act, had to sit and pass a citizenship test prior to lodging their application for citizenship and

a new course-based test which commenced on 31 May 2010. The course-based test provides an alternate testing pathway for disadvantaged and vulnerable clients.

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Citizenship test legal criteria (s21(2A)) The Australian citizenship test is designed to assess whether a person understands the nature of the application, has an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language. Since 2009, the citizenship test is based on the values within the pledge of commitment.

Under s21(2A) of the Act, an applicant seeking to acquire citizenship by conferral by meeting the general eligibility criteria set out in s21(2), is taken to have satisfied:

s21(2)(d) - understand the nature of the application

s21(2)(e) - possess a basic knowledge of the English language and

s21(2)(f) - have an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship,

only if the person:

sat a test approved in the Determination for the Approval of a Citizenship Test (the Minister’s Determination) and

was eligible to sit that test in accordance with the Minister’s Determination and

sat the test during the allowable period as per the Minister’s Determination and

successfully completed the test in accordance with the Minister’s Determination.

For further information on:

citizenship by conferral, refer to Chapter 7 - Citizenship by conferral

the general eligibility criteria for conferral, refer to General eligibility (s21(2))

the knowledge of English eligibility criteria, refer to Knowledge of English language

the knowledge of Australian and the responsibilities and privileges of Australian citizenship, refer to Knowledge of Australia and the citizenship responsibilities and privileges

the responsibilities and privileges of Australian citizenship, refer to Responsibilities and privileges of citizenship

the citizenship test determination, refer to The Minister’s determination (s23A).

The Minister’s determination (s23A) The Minister’s Determination is made under s23A of the Act, and it is not a legislative instrument.

The Minister’s Determination is updated from time to time. A copy of the Minister’s Determination is in LEGEND (and LEGENDcom - refer to www.border.gov.au/Trav/Visa/LEGE) under the ‘Legislative Instruments or Similar’ tag. It is also on the department’s website.

Test/s approved under s23A The Minister has approved three citizenship tests in the Minister’s Determination made under s23A of the Act:

Standard Test

Assisted Test

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Course-based Test.

Standard Test

Attachment 1, Part A of the Minister’s Determination relates to the Standard Test.

The Standard Test consists of 20 multiple choice questions which must be answered within a period of 45 minutes.

To successfully complete a standard test the client must score at least 75%.

Refer to the Minister’s Determination for further information.

Standard Test with assistance

A client attempting the Standard Test may request assistance. If assistance is requested, a Test Administrator (refer to Who may administer a test) may:

assist the client to use the computer and/or

read the questions and all answers out to the client.

A client may request assistance with using the computer or asks for the questions and all possible answers to be read out to them during this period.

For example a person may ask for assistance when:

they can speak and understand English but have difficulty reading English or

they arrive to take a test but find they have forgotten their reading glasses or

they have injured their hand and cannot operate the computer.

Assisted Test

Attachment 1, Part B of the Minister’s Determination relates to the Assisted Test.

The Assisted Test is available for people with low levels of literacy or with a physical impairment that prevents them from completing the Standard Test.

The Assisted Test consists of 20 multiple choice questions which must be answered within a 90 minute period.

To be eligible for a 90 minute Assisted Test a client must have completed 400 hours of English language tuition and be assessed as having less than basic reading skills. Their eligibility must be checked on the ARMS system prior to commencing the test.

A person who has an impairment, either temporary or permanent, that prevents them from taking a Standard Test may also take an Assisted Test.

To successfully complete an Assisted Test the client must score at least 75%.

Refer to the Minister’s Determination for further information.

Course-based Test

Attachment 1, Part C of the Minister’s Determination relates to the Course-based Test.

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A Course-based Test is available for vulnerable clients who require assistance in learning and are unable to successfully complete a computer based test even with assistance. A person would usually be invited to attend a Course-based Test after they have failed a Standard or Assisted Test on at least three separate days. In exceptional circumstances a client may be invited prior to failing on at least three separate days.

Course-Based Tests are:

available in selected locations in Australia

not available overseas.

To successfully complete a Course-based Test a person must attend all seven course sessions and score at least 75% pass mark for each of the nine assessment tasks.

An applicant may undertake a Course-based Test if they:

have failed the Standard Test or Assisted Test (or combination of both) on at least three separate days or

have been assessed after one or two test failures by a test administrator based on consideration of their individual circumstances, as suitable for participation in the Course-based Test.

An applicant may be eligible to undertake the Course-based Test but may choose to sit the Standard Test or Assisted Test (if eligible).

Where the applicant accepts an invitation to participate in a Course-based Test they may continue to sit a Standard Test or an Assisted Test until the commencement of the Course-based Test.

Once they have commenced a Course-based Test, they may not return to attempt the Standard Test or Assisted Test unless they do not successfully complete the Course-based Test or withdraw in writing prior to the Course-based Test being completed.

Eligibility to sit a test The eligibility criteria for sitting each of the types of test are set out in the Minister’s Determination.

If a person was not eligible to sit a test, but sat the test and passed it anyway, then despite passing the test the person has not met the requirements in s21(2)(d), (e) and (f).

It is important to note that if a person has not made a valid application, that is, an application that meets the requirements set out in s46 of the Act, they are not eligible to sit a test.

Who may administer a test Attachment 1 to the Minister’s Determination defines the role of test administrator and sets out the roles that a test administrator may perform.

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Chapter 7C - Pledge of commitment and Ceremonies

Overview of chapter The Act requires certain conferral applicants to make a pledge of commitment to become an Australian citizen by conferral. The requirements relating to the making of the pledge of commitment are set out in the Act and Regulations.

Where reasonably practicable the pledge of commitment must be made in public (s27(2) of the Act and regulation 8 of the Regulations). The pledge is therefore usually made at a citizenship ceremony.

This chapter provides guidance on the pledge and citizenship ceremonies. See:

Pledge of commitment - overview

Citizenship ceremonies - overview

Authorisation to receive the pledge of commitment

Conferee fails to make the pledge

Pledge cards and translations of the pledge

Pledge verification lists

Disclosing details of new citizens

Australian citizenship affirmation ceremonies.

For guidance on citizenship by conferral, refer to Chapter 7 - Citizenship by conferral.

Pledge of commitment - overview Section 20(b) and 28 of the Act provides that if a person is required to make a pledge of commitment to become an Australian citizen under Division 2, Subdivision B - Citizenship by Conferral, then the person will only become an Australian citizen when the person makes the pledge.

Under s26, a pledge of commitment must be made by certain categories of approved conferral applicants in order to acquire Australian citizenship. Subsection 26(1) sets out categories of conferral applicants that are not required to make a pledge of commitment in order to acquire citizenship.

Refer also to:

Pledge of commitment must be made (s26)

Arrangements for making the pledge of commitment

Delayed making of pledge (s26(3) to s26(6))

Pledge made before approval

Approval may be cancelled if pledge not made (s25(3))

Prescribed reasons for failing to make pledge

Conferee fails to make the pledge

Pledge cards and translations of the pledge

Pledge verification lists.

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Pledge of commitment must be made (s26)

A person must make the pledge of commitment to become an Australian citizen unless covered by one of the circumstances mentioned in s26(1) of the Act.

Children included on the application of a responsible parent may attend the citizenship ceremony with their parent/s even though they are not legally required to take part in the ceremony or make the pledge. Under s28 of the Act children included in a responsible parent’s citizenship application acquire citizenship when their responsible parent acquires citizenship (that is, when their responsible parent makes the pledge if required to do so to become a citizen).

Arrangements for making the pledge of commitment

Section 27 details how the pledge of commitment is to be made.

Section 27(2) of the Act provides that the pledge must be made in accordance with arrangements prescribed by the Regulations. In regulation 8:

the pledge of commitment must be made in public if it is reasonably practicable, and

the presiding officer must read aloud, to those people making the pledge, the Preamble for citizenship ceremonies that is set out in Schedule 1 of the Regulations.

Most pledges of commitment are therefore made at a citizenship ceremony. For further information about citizenship ceremonies refer to Citizenship ceremonies - overview.

In accordance with Schedule 1 of the Act, the pledge of commitment may be made in either of the two forms set out in Schedule 1.

Citizenship candidates may choose which version of the pledge they prefer. No other form of the pledge is legally acceptable.

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.

Delayed making of pledge (s26(3) to s26(6))

If a person has not yet acquired Australian citizenship (that is, they are required to make a pledge of commitment to acquire citizenship and have not yet done so), and:

their visa may be cancelled under the Migration Act or

they have been or may be charged with an offence under Australian law

it is possible under s26(3), to determine in writing, that the person will be prevented from making the pledge of commitment for a specified period.

The period of delay cannot exceed 12 months (s26(4)).

The delay determination may be revoked in writing (s26(5)).

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If a determination has been made (in writing) specifying that the person must not make a pledge of commitment, any pledge made by the person during the period covered by the determination has no effect (s26(6)).

Pledge made before approval

A pledge made by a person who has not had an application to acquire Australian citizenship by conferral approved has no effect.

Section 26(2) of the Act provides that a person must not make the pledge of commitment before the Minister approves the person’s application to become an Australian citizen under Division 2, Subdivision B - Citizenship by Conferral, and that a pledge made by a person before that time is of no effect.

Approval may be cancelled if pledge not made (s25(3))

In the case of people who are required to make a pledge of commitment, approval may be cancelled if the person has not made the pledge within 12 months of receiving notice of approval. The approval may be allowed to continue or remain if the reason for failing to make the pledge is one of the prescribed reasons given in regulation 7. Refer to Minister may cancel approval (s25) and Prescribed reasons for failing to make pledge.

Prescribed reasons for failing to make pledge

Regulation 7(5) means that if a person has failed to make a pledge for a reason covered by regulation 7(3) or (4), and the person has not provided a signed statement and supporting evidence in accordance with regulation 7(5), there is no prescribed reason which would prevent consideration being given to cancellation of their approval.

Section 25(3) requires that a person must have one of the prescribed reasons (in regulation 7) for failing to make the pledge of commitment within 12 months of receiving approval, to avoid cancellation of approval.

Prescribed reasons are limited only to a person overseas for:

medical treatment that was not available in Australia or

a purpose unrelated to medical treatment, and was unexpectedly hospitalised while overseas or

caring for a person who was critically ill or

funeral and associated arrangements.

Applicants must provide a signed statement and written evidence to support their claims (regulation 7(5)).

Citizenship ceremonies - overview 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.

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The vast majority of Australian citizenship ceremonies are conducted by local government councils. Community organisations and parliamentarians can also on occasion host citizenship ceremonies.

There are three legal requirements for conducting a citizenship ceremony:

Authorisation to receive the pledge of commitment

Section 27 of the Act requires that the person before whom the pledge is made (the presiding officer) must be authorised by the Minister. Refer to Authorisation to receive the pledge of commitment.

Preamble for citizenship ceremony

The presiding officer must read Schedule 1 of the Regulations (Preamble for citizenship ceremony) to the candidates. Refer to Preamble for citizenship ceremonies.

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. Refer to Pledge of commitment - overview.

Refer also to:

Australian Citizenship Ceremonies Code

Urgent or private ceremonies


Australian Citizenship Ceremonies Code

The Australian Citizenship Ceremonies Code (the Code) provides guidance for organisations conducting citizenship ceremonies. It sets out the legal and other requirements as well as the roles and responsibilities of those people conducting ceremonies. The Code is publicly available from the department’s website (http://www.border.gov.au/Citizenship/Documents/australian-citizenship-ceremonies-code.pdf).

Urgent or private ceremonies

Citizenship candidates should attend public ceremonies. In exceptional circumstances urgent and/or private ceremonies can be considered.

Authorisation to receive the pledge of commitment 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.

Details of positions authorised by the Minister under s27(5) for the purposes of s27(3)(c) are given in the legislative instrument.

Presiding officers have no power to appoint a proxy. However, if a person is holding, occupying or performing the duties of a position which is authorised, the person will have the authority to perform the duties of the presiding officer.

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To avoid the appearance of conflict of interest, presiding officers should not confer Australian citizenship on family members, close friends or acquaintances at special purpose ceremonies.

Standing authorisations

Since 2011, all Federal MPs and Senators have had standing authority to preside at Australian citizenship ceremonies.

Ceremony specific authorisations

On occasion, authorisation may be given by the Minister for a person to preside at a specified ceremony. For example, a state/territory parliamentarian may be asked to act as presiding officer on a particular occasion. Requests for ceremony specific authorisations are usually, but not always, associated with Australia Day and Australian Citizenship Day ceremonies.

Preamble for citizenship ceremonies

Under regulation 8 of the Regulations the presiding officer must read aloud the words as specified in Schedule 1 of the regulations Preamble for citizenship ceremony to the person making the pledge.

Conferee fails to make the pledge If a conferee fails to make a pledge during a public citizenship ceremony they should be advised that they are not a citizen and be given the opportunity to make the pledge.

Conferees who fail to make the pledge do not become Australian citizens and must not be presented with their citizenship certificate.

Persons required to make the pledge, who fail to do so within 12 months of receiving notification of approval, may be subject to cancellation of approval. Further information on cancellation of approval can be found in Minister may cancel approval (s25).

Pledge cards and translations of the pledge Candidates who can speak English are required to make the pledge in English.

Translations of the Pledge are available in several languages for conferees that are not required to possess a basic knowledge of the English language and cannot speak English.

Conferees who are not required to satisfy an English language requirement are those people who have been approved to acquire citizenship under s21(4) (person aged 60 or over or has a hearing, speech or sight impairment, refer to Person aged 60 or over (s21(4)(i)) and Person with hearing, speech or sight impairment (s21(4)(a)(ii))).

Conferees who have been approved to acquire citizenship under s21(1) (general eligibility, refer to General eligibility (s21(2))) and those aged 16 or 17 years approved to acquire under s21(5) (refer to Applicants aged 16 or 17 (s21(5))) should make the pledge in English.

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.

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The Australian Citizenship Ceremonies Code provides more information on the pledge and the requirements for conducting citizenship ceremonies.

Pledge verification lists If a person is not on the pledge verification list and the person makes the pledge at a ceremony, whether the person has been approved to acquire citizenship by conferral or not, the pledge has no effect.

Where the pledge verification list indicates a person attended a ceremony, however, they failed to make the pledge of commitment, that person has not yet fulfilled the requirements to become an Australian citizen and therefore an acquired event must not be recorded in the department’s system.

The pledge verification list must be retained for the number of years specified in the relevant Records Authority. See Records Authority.

Disclosing details of new citizens The citizenship application forms state that personal information may be disclosed to, among others:

local state/local government authorities for the purposes of administering citizenship ceremonies

the Australian Electoral Commission for the purposes of administering the Commonwealth Electoral Act 1918 and

Federal, State/Territory Members of Parliament (MPs) for the purposes of formally welcoming new citizens into the Australian community.

It is desirable that state and territory and MPs have the opportunity to welcome new citizens as formal members of the Australian community, both at the citizenship ceremony and otherwise.

Local MPs are the elected representatives of the new citizens. A welcome from a local MP 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 MPs. 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.

Information on privacy aspects of disclosure of these details to local MPs 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.

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Disclosing the name and address of new citizens to local MPs for the purpose of those MPs welcoming the new citizens as constituents would be a related secondary purpose. New citizens are informed through the application form for conferral of Australian citizenship that their information may be disclosed to MPs for this purpose.

Only names and addresses are forwarded to MPs. Copies of Pledge lists containing identity and personal information should not be sent to MPs.

Australian citizenship affirmation ceremonies The Australian citizenship affirmation provides an opportunity for those who are already Australians to publicly declare their pride and commitment to Australia and its people.

Affirmation ceremonies have no legal effect, and participation is voluntary. The affirmation is based on the pledge of commitment made by new citizens at citizenship ceremonies.

The affirmation must be led by an Australian citizen. Authorisation is not required.

An affirmation ceremony can increase awareness of Australian citizenship, promotes community involvement and participation, and helps people feel they belong to the broader Australian community.

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Chapter 8 - Resuming citizenship

Overview of resumption 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.

Under s36A in Part 2, Division 3 of the Act, the provisions set out in Division 1 (Automatic Acquisition of Australian Citizenship) and Division 2 (Acquisition of Australian Citizenship by Application) do not apply for persons who cease to be Australian citizens under s33AA, s35, or s35A. Refer to No resumption option for certain persons (s36A).

When a person is approved to resume Australian citizenship they reacquire:

Australian citizenship from the time of approval (s32)(1)) and

the same type of Australian citizenship that they held prior to ceasing to be an Australian citizen (s32(2) - former citizen under the Act, and s32(3) - former citizen under the old Act).

See:

Registration (s31)

Day citizenship begins again (s32(1))

Same kind of citizenship (s32(2) to s32(3))

Eligibility to resume citizenship (s29)

Prohibitions - Minister’s decision (s30)

Application requirements - resuming

Decision making - resuming (s30)

Decision records

Notification of decision (s47)

Review of decisions (s52).

For guidance on cessation of Australian citizenship. Refer to Chapter 9 - Cessation of Australian citizenship.

Registration (s31)

Under s31, if a person is approved to become an Australian citizen again, their details must be registered in the department’s system in accordance with the regulation 9.

Day citizenship begins again (s32(1))

Under s32(1) a person becomes an Australian citizen again on the day the application is approved.

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Same kind of citizenship (s32(2) to s32(3))

The kind of citizenship resumed is the same as the kind held before it was renounced. For example, if the person was an Australian citizen by descent, the person again becomes a citizen by descent. If the person was an Australian citizen by grant under the old Act, the person becomes a citizen by conferral.

However, a former citizen could acquire a different kind of citizenship if they successfully applied for that other kind and met the relevant requirements, for example, a former citizen by descent applying for citizenship by conferral.

Eligibility to resume citizenship (s29) Under the provisions contained in Part 2, Division 2, Subdivision C of the Act a person may be eligible to apply to resume Australian citizenship, if they:

previously held Australian citizenship, and

ceased to be an Australian citizen under one of the allowable circumstances set out in s29(2) or s29(3), and

are of good character (if aged 18 or over at the time of application).


If person ceased under s33 (Renunciation by application)

Some people who renounce their Australian citizenship do so for reasons other than to retain or acquire another citizenship, or to avoid significant hardship or detriment. People who renounce their citizenship for other reasons are not eligible to resume their citizenship (s29(2) - eligibility for those who ceased under the Act, and s29(3) - eligibility for those who ceased under the old Act).

For information regarding the consideration of whether a person would suffer significant hardship or detriment, refer to Significant hardship or disadvantage / detriment.

No resumption option for certain persons (s36A)

Under s36A, it is not possible for a person to resume citizenship if they ceased to be an Australian citizen under s33AA (renunciation by conduct), s35 (service outside Australia in armed forces of an enemy country or a declared terrorist organisation) or s35A (conviction for a specified offence).

Person born in Papua

People who lost their citizenship under s17 or s18 of the old Act may be eligible to resume their Australian citizenship.

People who lost Australian citizenship under the legislation designed to create of an independent PNG are not eligible to resume Australian citizenship.

For guidance on cessation of Australian citizenship under the PNG Independence legislation, refer to PNG Independence - 16 September 1975.

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Prohibitions - Minister’s decision (s30) Section 30 of the Act sets out a number of circumstances where an application to resume Australian citizenship must not be approved. A person applying to resume citizenship must not be approved if one of the provisions in s30(3) to s30(7) of the Act is in place. See:

Identity (s30(3))

National security (s30(4) to s30(7)).

Identity (s30(3))

Section 30(3) requires that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.


National security (s30(4) to s30(7))





Application requirements - resuming A person may make an application to become an Australian citizen again (s29(1)).



Approved forms - resuming

The approved form provides for children under the age of 16 years to be included in a responsible parent’s application. Refer to Included applicants - resuming.

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Fees for resumption applicants

Under regulation 12A, an application to resume Australian citizenship must be accompanied by the fee mentioned in item 17 of Schedule 3.

Item 16 of Schedule 3 prescribes the fee payable by a child, under the age of 16, who makes an application at the same time and on the same form as a responsible parent (currently ‘Nil’).

For information regarding refund of fees, or repayment of fees in the case of an invalid application, refer to Application fees (s46(1)(d)).

Decision making - resuming (s30) Guidance on decision making on applications for person who apply to resume citizenship is provided below. For information regarding general decision making requirements, decision records, and notification requirements, refer to Chapter 17 - Decision making and review.

Must approve or refuse (30(1))

An application for resumption of citizenship must be approved or refused in writing. If an applicant meets the eligibility requirements and there is no prohibition on approval, the application would be approved. The applicant must also be given notice of the decision. Refer to Notification of decision (s47).

Included applicants - resuming

Children aged under 16 years may apply individually on their own application form, or be included on the application form of a responsible parent (s46(2A)). Refer to Chapter 21 - Responsible parent.

There are no dependent applicants under the Act. Each person included on an application form is an applicant in their own right. An individual decision to approve or refuse must be made regarding each applicant included on the application form, based on consideration of all factors relating to that individual applicant’s application.

All applicants aged 16 years and over must apply individually.

A child included on a resuming application form of a responsible parent must not be approved, regardless of whether the responsible parent is approved or refused, unless the child satisfies the eligibility requirements set out in s29(2) or s29(3) in their own right and the child is not prevented from being approved by any of the prohibition provisions set out in s30.


A person must not be approved to resume citizenship unless the eligibility criteria under s29(2) or s29(3) are satisfied (s30(1A)).

May refuse to approve an eligible person (s30(2))

A decision may be made under s30(2) to refuse to approve a person who is eligible to become an Australian citizen again under s29(2) or s29(3).

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Must refuse if a prohibition is in place (s30(3) to s30(7))

A person must not be approved to become a citizen again if one of the provisions in s30(3) to 30(7) prohibit such an approval. Refer to Prohibitions - Minister’s decision (s30).

Decision records For information regarding decision records, refer to Decision records.

Notification of decision (s47) For information regarding notification requirements, refer to Notifications and notification periods.

Review of decisions (s52) Under s52(1) of the Act, a person may make an application to the AAT for review of a decision made under s30 to refuse to approve a person becoming an Australian citizen again.


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Overview to chapter There are a number of ways that a person may cease to be an Australian citizen under the Act, or may have ceased to have been an Australian citizen under the old Act. The cessation of Australian citizenship provisions are set out in Division 3 of Part 2 of the Act.

Part 2, Division 3 of Act - overview Part 2, Division 3 of the Act outlines the circumstances in which a person ceases to be an Australian citizen.

A person may cease to be an Australian citizen by:

renouncing their citizenship (s33). Refer to Renunciation by application (s33)

engaging in certain terrorist or other related conduct (s33AA). Refer to Renunciation by conduct (s33AA)

as a result of the Minister revoking their citizenship (s34, s 34A). Refer to Revocation by Minister (s34 and s34A)

by fighting for, or being in the service of, a declared terrorist organisation overseas (s35). Refer to Enemy country service or a declared terrorist organisation (s35, s35AA, s35AB)

by serving in the forces of a country at war with Australia (s35). Refer to Enemy country service or a declared terrorist organisation (s35, s35AA, s35AB)

by being convicted for terrorism offences and certain other offences. Refer to Conviction for terrorism and related offences (s35A) or

by being the child of responsible parents who cease to be citizens. Refer to Children of responsible parents who cease to be citizens (s36).

The ways a person would lose citizenship under the old Act differed from those listed in the Act. For information regarding loss under the old Act refer to Historical cessation provisions and the legislation and policy that was in place at that time.

From 12 December 2015 the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the Allegiance to Australia Act) amended the Act to expand the basis on which the Australian citizenship of a dual citizen or dual national will cease, if the person acts inconsistently with his or her allegiance to Australia.

The new grounds for cessation of Australian citizenship as a result of the Allegiance to Australia Act were inserted as a means of ensuring the safety and security of Australia and its people, and to ensure the Australian community is limited to those persons who continue to retain an allegiance to Australia. In each case, the new grounds recognise that there is certain conduct which is incompatible with the shared values of the Australian community. A person engaging in such conduct demonstrates that they have severed the common bond of Australian citizenship and repudiated their allegiance to Australia.

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The new grounds for cessation apply only to Australian citizens who are also a national or citizen of another country at the relevant time. This is so that Australia does not breach its international obligations under conventions relating to statelessness to which Australia is a party.

Cessation of a child’s citizenship, if a responsible parent’s Australian citizenship ceases, is discretionary. This is consistent with Australia’s international obligations in regard to the Universal Declaration of Human Rights and the Convention on the 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 allow the person to travel outside Australia.

A person who is outside Australia when they cease to be an Australian citizen does not hold a visa.

The circumstances in which a person can resume their Australian citizenship are set out in s29 of the Act. Refer to Chapter 8 - Resuming citizenship.

People who acquired citizenship by descent under the old Act

Under the transitional arrangements for the Act, only people who were citizens by descent under the old Act became citizens by descent under the 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 Act. Refer to Not a citizen despite approval (s19A).

Renunciation by application (s33) Section 33 provides for a person to renounce their Australian citizenship. An application must be approved or refused.

If an applicant meets the requirements in s33(3), and there is no prohibition on approval under s33(4), (6) and (7), the application must be approved unless s33(5) applies.

Subsection 33(7) requires that a person not be left stateless. The term ‘immediately after’ should not be interpreted literally. It is sufficient that the person would acquire another nationality or citizenship within a reasonable period after ceasing to be an Australian citizen. A ‘reasonable period’ would be that which is reasonable in all the circumstances of the case allowing for processes required by the country of acquisition such as processing of an application or attendance at a ceremony.

Under s33(8) if the Minister approves a person renouncing their Australian citizenship, the person ceases to be an Australian citizen at the time of the approval.

Some people who renounce their Australian citizenship do so for reasons other than to retain or acquire another citizenship, or to avoid significant hardship or detriment. People who renounce their citizenship for other reasons are not eligible to resume their citizenship. They may, however, be eligible for citizenship by conferral, citizenship by descent, or citizenship by s19C adoption (Hague or bilateral arrangement adoption).

Refer also to:

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Time citizenship ceases (s33(8))

Application requirements - renunciation by application

Decision making - renunciation by application (s33)

Decision records


Review of decisions (s52).

Time citizenship ceases (s33(8))

Under s33(8) if the Minister approves a person renouncing their Australian citizenship, the person ceases to be an Australian citizen at the time of the approval.

Application requirements - renunciation by application

A person may make an application to renounce their Australian citizenship (s33(1)).



Approved form - renunciation by application

The form allows for details to be provided of any children of the applicant who the applicant would like to cease to be citizens if the applicant ceases to be a citizen. Separate application is not required because cessation of a child’s citizenship when a responsible parent ceases to be a citizen is by revocation and is discretionary.

Fees to accompany applications (reg 12A)

Under regulation 12A, an application to the Minister to renounce the person’s Australian citizenship must be accompanied by the fee mentioned in item 18 of Schedule 3.

For information regarding refund of fees, or repayment of fees in the case of an invalid application, refer to Application fees (s46(1)(d)).

Decision making - renunciation by application (s33)

Under s33 an application must be approved or refused.

If an applicant meets the requirements in s33(3), and there is no prohibition on approval under s33(4), (6) and (7), the application must be approved unless s33(5) applies.

Evidence that the applicant is a citizen of another country should include a statement from a relevant government representative that the person is a citizen of that country or, if the person was born or is ordinarily resident in a foreign country, that the person will acquire the citizenship of that country on renunciation of Australian citizenship.

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The term ‘immediately after’ should not be interpreted literally. It is sufficient that the person would acquire another nationality or citizenship within a reasonable period after ceasing to be an Australian citizen. A ‘reasonable period’ would be that which is reasonable in all the circumstances of the case allowing for processes required by the country of acquisition such as processing of an application or attendance at a ceremony.

Decision records

For information regarding decision records, refer to Decision records.


For information regarding notification requirements, refer to Notifications and notification periods.

Review of decisions (s52)

Section 52(1) provides that a decision under s34 or s36(1) to revoke a person’s Australian citizenship may be made to the AAT.


Renunciation by conduct (s33AA) Section 33AA provides that a person aged 14 years or older who is a national or citizen of a country other than Australia renounces their Australian citizenship if they act inconsistently with their allegiance to Australia by engaging in specified conduct.

The specified conduct is:

engaging in international terrorist activities using explosive or lethal devices

engaging in a terrorist act

providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act

directing the activities of a terrorist organisation

recruiting for a terrorist organisation

financing terrorism

financing a terrorist and

engaging in foreign incursions and recruitment.

The conduct provisions are limited to individuals who have:

engaged in relevant conduct offshore or

engaged in relevant conduct onshore and left Australia before being charged and brought to trial in respect of that conduct.

This conduct reflects the physical elements of provisions of the Criminal Code concerning terrorism-related offences. However, s33AA is not concerned with whether a person has committed an offence under the Criminal Code since that is a matter that only a court may determine.

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Section 33AA only applies if the conduct is engaged in with the intention of advancing a political, religious or ideological cause and with the intention of coercing or influencing an arm of the Australian Government or a government of a foreign country or intimidating the public. This requires factual evidence demonstrating the existence of these intentions at the time the person engaged in the terrorism-related conduct.

However, this intention is satisfied where the person engaged in the conduct was a member of a declared terrorist organisation, or was acting on instruction of or in cooperation with a declared terrorist organisation. ‘Declared terrorist organisation’ is defined in s35AA.

Subsection 33AA(8) provides that s33AA(1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person’s birth).

Subsection 33AA(9) provides that where a person renounces their Australian citizenship under s33AA, the renunciation takes effect, and the Australian citizenship of the person ceases, immediately upon the person engaging in the terrorist-related conduct referred to in s33AA(2).

Minister to give notice (s33AA(10) to s33AA(12))

If the Minister becomes aware that a person has renounced their Australian citizenship under s33AA, the Minister must give, or make reasonable attempts to give, written notice to the person as soon as practicable and may give notice to such other persons that the Minister considers appropriate (s33AA(10)).

The notice must set out the matters relating to cessation of citizenship (as required by s35B) and the person’s rights of review (s33AA(11)).

The Minister is not required to give a person written notice if the giving of the notice could prejudice the security, defence or international relations of Australia or Australian law enforcement operations. The Minister must revisit the decision not to give the person notice, every 6 months after making it until 5 years have passed (s33AA(12)).

Minister’s power to rescind notice and exempt person (s33AA(13) to s33AA(19))

Subsection 33AA(13) provides that the power in s33AA(14) only applies where a person has renounced his or her citizenship under s33AA.

Subsection 33AA(14) authorises the Minister to make a determination rescinding a notice given under s33AA(10) and exempting the person from loss of citizenship. This is a discretionary power, which comes into play only after a person has renounced his or her citizenship.

Subsection 33AA(15) makes it clear that the Minister does not have a duty or obligation to exercise the power conferred by s33AA(14). This includes in circumstances where a request or application for the Minister to consider exercising that discretion has been made.

Subsection 33AA(16) makes it clear that, when deciding whether to consider exercising the power conferred by s33AA(14), the Minister is not required to have regard to any of the matters set out in s33AA(17).

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Subsection 33AA(17) provides that, in the event the Minister decides to consider exercising the power conferred by s33AA(14), the Minister must have regard to the following:

the severity of the matters that were the basis for any notice given under s33AA(10) or that would have been the basis for a notice under s33AA(10)(a) if not for the operation of s33AA(12)

the degree of threat posed by the person to the Australian community

the age of the person

if the person is aged under 18 the best interests of the child as a primary consideration

whether the person is being or is likely to be prosecuted in relation to the matters that were the basis for the notice

the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person

Australia’s international relations

any other matters of public interest.

This will require the Minister to have regard to all of the circumstances surrounding the person's conduct and the other matters specified in s33AA(17), in considering whether to rescind any notice given under s34AA(10) and exempt the person from the effect of the section. This only applies if the Minister decides to consider exercising the power conferred by s33AA(14).

A decision of the Minister under s33AA(14) will be subject to judicial review.

General provisions relating to Minister’s powers (s33AA(20) to s33AA(24))

Subsection 33AA(20) provides that the powers of the Minister under this section may only be exercised by the Minister personally. That is, they may not be delegated.

Subsection 33AA(21) provides that s47 of the Act, which sets out the general notice requirements, applies to a decision by the Minister to make or not make a s33AA(14) determination, but does not apply to any other decision of the Minister under this section, including a decision whether to consider exercising the power in that subsection to make a determination (refer also to s35B).

Subsection 33AA(22) provides that the rules of natural justice apply in relation to a decision by the Minister to make or not make a s33AA(14) determination, but do not apply to any other decision of the Minister under this section, including a decision whether to consider exercising the power in that subsection to make a determination.

Subsection 33AA(23) provides that an instrument exercising any of the Minister’s powers under this section is not a legislative instrument.

Subsection 33AA(24) clarifies that the effect of this provision is that where a person is found by an Australian court not to have engaged in the terrorist-related conduct, or would be rendered stateless, the person’s Australian citizenship is taken never to have ceased. That is, the person is taken to never have lost their Australian citizenship. This also applies where the Minister rescinds the notice and exempts the person from the operation of s33AA. Section 33AA may apply to any subsequent conduct. If the Minister rescinds the notice and exempts the person from the effect of s33AA, s35 and s35A may still apply to the persons conduct.

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Enemy country service or a declared terrorist organisation (s35, s35AA, s35AB) The Allegiance to Australia Act amendment repealed s35 and inserted new sections 35, 35AA and 35AB into the Act. While s35 in the old Act applied to service in the armed forces of an enemy country, the new sections expand this to recognise national security threats that emerge from irregular forces assembled under terrorist banners and who conduct irregular operations.

New s35(1) provides that a person aged 14 years or older ceases to be an Australian citizen if:

the person is also a national or citizen of a country other than Australia and

the person:

serves in the armed forces of a country at war with Australia or

fights for, or is in the service of, a declared terrorist organisation (refer to s35AA) and

the person’s service or fighting occurs outside Australia.

Note 1 to new s35(1) provides that the Minister may, in writing, exempt the person from the effect of this section applying in relation to certain matters: refer to s35(9).

Note 2 to new s35(1) provides that this section does not apply to conduct of Australian law enforcement or intelligence bodies or to conduct in the course of certain duties to the Commonwealth (refer to s35AB).

‘Declared terrorist organisation’ is defined in s35AA.

This section applies to all Australian citizens who are nationals or citizens of another country (including a person who became an Australian citizen upon the person’s birth) (s35(1) and s35(3)).

Citizenship ceases at the time the person commences to serve or fight (s35(2)).

Under s35(4), a person is not in the service of a declared terrorist organisation if:

the person’s actions are unintentional

the person is acting under duress or force or

the person providing neutral or independent humanitarian advice.

Minister to give notice (s35(5) to s35(7))

If the Minister becomes aware that a person has ceased to be Australian citizen under s35, the Minister must give, or make reasonable attempts to give, written notice to the person as soon as practicable and may give notice to other such persons that the Minister considers appropriate (s35(5)).

The notice must set out the matters relating to cessation of citizenship (as required by s35B) and the person’s rights of review (s35(6)).

The Minister is not required to give a person written notice if the giving of the notice could prejudice the security, defence or international relations of Australia or Australian law enforcement operations. The Minister must revisit this determination every 6 months after making it until 5 years have passed (s35(7)).

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Minister’s power to rescind notice and exempt person (s35(8) to s35(14))

Subsection 35(8) provides that s35(9) only applies if a person has ceased to be an Australian citizen under s35.

Subsection 35(9) provides that, if a person has ceased to be an Australian citizen under s35, the Minister may make a determination rescinding the notice of cessation under s35(5) and exempting the person from the operation of s35 in relation to the matters that were the basis for the notice or in relation to matters that would have been the basis for giving a notice under s35(5)(a) if not for the operation of s35(7). This is a discretionary power, which applies only after a person’s citizenship has ceased.

Subsection 35(10) clarifies that the Minister does not have a duty, and is not obliged, to consider whether to exercise the power conferred by s35(9). This includes in circumstances where a request or application for the Minister to consider exercising that discretion has been made.

Subsection 35(11) is an avoidance of doubt provision that clarifies that, when the Minister considers whether or not to exercise the discretion conferred under s35(9), the Minister is not required to have regard to the matters listed in s35(12).

Subsection 35(12) provides that, if the Minister does decide to consider whether to exercise the power conferred by s35(9), the Minister must have regard to the following:

the severity of the matters that were the basis for any notice any notice given under s35(5) or in relation to matters that would have been the basis for giving a notice under s35(5)(a) if not for the operation of s35(7)

the degree of threat posed by the person to the Australian community

the age of the person

if the person is aged under 18 the best interests of the child as a primary consideration

whether the person is being or is likely to be prosecuted in relation to the matters that were the basis for the notice

the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person

Australia’s international relations

any other matters of public interest.

This will require the Minister to have regard to all of the circumstances surrounding the person's conduct and the other matters specified in s35(12), in considering whether to rescind any notice given under s35(9) and exempt the person from the effect of the section. This only applies if the Minister decides to consider exercising the power conferred by s35(9).

A decision of the Minister under s35(9) will be subject to review.

Subsection 35(13) requires the Minister to cause a statement to be laid before each House of Parliament if he or she makes a determination under s35(9). The statement must be laid within 15 sitting days of making the determination, and must set out both the determination and the reasons for the determination, including the Minister’s reasons in relation to the matters set out in s35(12).

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General provisions relating to Minister’s powers (s35(15) to s35(19))

Subsection 35(15) provides that the powers of the Minister under this section may only be exercised by the Minister personally. That is, they may not be delegated.

Subsection 35(16) provides that s47 of the Act, which sets out the general notice requirements, applies to a decision to make or not make a s35(9) determination, but does not apply to any other decision, including a decision not to consider exercising the power in that subsection to make a determination. Refer also to s35B.

Subsection 35(17) provides that the rules of natural justice apply in relation to a decision by the Minister to make or not make a s35(9) determination, but do not apply to any other decision of the Minister under this section, including a decision whether to consider exercising the power in that subsection to make a determination.

Subsection 35(18) provides that an instrument exercising any of the Minister’s powers under this section is not a legislative instrument.

Subsection 35(19) clarifies that effect of this provision is that where a person is found by an Australian court not to have engaged in the terrorist-related conduct, or would be rendered stateless, the person’s Australian citizenship is taken never to have ceased. That is, the person is taken to never have lost their Australian citizenship. This also applies where the Minister rescinds the notice and exempts the person from the operation of s35. Section 35 may apply to any subsequent conduct. If the Minister rescinds the notice and exempts the person from the effect of s35, s33AA and s35A may still apply to the person’s conduct.

Declared terrorist organisation (s35AA)

Section 35AA sets out the means by which the Minister may declare an organisation to be a ‘declared terrorist organisation’. These declarations are relevant both to the operation of s33AA, as one means of establishing the intention element for conduct falling under s33AA, and the operation of s35, concerning fighting for or being in the service of a declared terrorist organisation.

A declared terrorist organisation must be a terrorist organisation within the meaning of paragraph (b) of the definition of ‘terrorist organisation’ in s102.1(1) of the Criminal Code.

In addition, before declaring that an organisation is a declared terrorist organisation, the Minister must be satisfied on reasonable grounds that the organisation is either directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act. The Minister must also be satisfied on reasonable grounds that the organisation is opposed to Australia or its interests, values, democratic beliefs, rights or liberties such that the person fighting for or in the service of the organisation would be acting inconsistently with their allegiance to Australia. In both cases, factual evidence forms the basis for the Minister’s declaration.

Conviction for terrorism and related offences (s35A) Section 35A provides that the Minister may determine in writing that a person ceases to be an Australian citizen if:

the person has been convicted of a specified terrorist-related offence (refer to s35A(1))

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the period of imprisonment is at least 6 years

the person is a dual citizen (as in a citizen of Australia and at the same time a citizen of a country other than Australia)

the person’s conduct demonstrates that they have repudiated their allegiance to Australia and

the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen.

Cessation of citizenship is not automatic in these cases, but occurs upon the Minister making a determination.

The Minister may only make a determination under s35A(1) if the person is also a national or citizen of a country other than Australia when the Minister makes the determination (s35A(1)(c)).

The person ceases to be an Australian citizen at the time when the determination is made (s35A(2)).

Subsection 35A(3) provides that s35A(1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person’s birth).

Minister to give notice (s35A(5) to s35A(7))

If the Minister makes a determination ceasing a person’s citizenship under s35A, the Minister must give, or make reasonable attempts to give, written notice to the person as soon as practicable and may give notice to other such persons that the Minister considers appropriate (s35A(5)).

The notice must set out the matters relating to cessation of citizenship (as required by s35B) and the person’s rights of review (s35A(6)).

The Minister is not required to give a person written notice if the giving of the notice could prejudice the security, defence or international relations of Australia or Australian law enforcement operations. The Minister must revisit this decision every 6 months after making it until 5 years have passed (s35A(7)).

Minister must revoke determination if conviction overturned (s35A(8) to s35A(9))

The Minister is required to revoke the determination providing that a person ceases to be an Australian citizenship if the conviction because of which the determination was made is overturned on appeal or quashed and no further appeal can be made to a court in relation to that decision.

General provisions relating to Minister’s powers (s35A(10) to s35A(13))

Subsection 35A(10) provides that the powers of the Minister under s35A may only be exercised by the Minister personally. That is, they may not be delegated.

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Subsection 35A(11) provides that except for the powers of the Minister under s35A(1), the rules of natural justice do not apply in relation to the powers of the Minister under s35A. If the Minister is considering making a determination to cease a person’s Australian citizenship the person must be provided with:

details of the key elements of the case against the person and

an opportunity to respond/make submission to the Minister.

Review rights relevant to natural justice apply to a decision under s35A(1).

Subsection 35A(12) provides that s47 does not apply in relation to the exercise of powers of the Minister under s35A. Section 47 of the Act relates to the notification of decisions made under the Act. Section 47 is excluded from operation under s35A because s35A provides for its own stand-alone notice provisions which differ from s47 (refer to s35B).

Subsection 35A(13) provides that an instrument exercising any of the Minister’s powers under this section is not a legislative instrument.

Revocation by Minister (s34 and s34A) The power to revoke a person’s citizenship under s34 can only be made by the Minister because these powers have not been delegated by the Minister.

The citizenship of people who applied for citizenship under the old Act between 10 April 1997 and 30 June 2007 can be revoked for migration-related fraud only within the meaning of s21(1A) and s21(1B) of the old Act.

The third-party fraud provisions apply only to people who applied on or after 1 July 2007, the commencement of this Act.

Children of responsible parents who cease to be citizens (s36) Under s36 a child’s Australian citizenship may be revoked if the child has a responsible parent who ceases to be an Australian citizen by renunciation (s33), revocation (s34 or s34A). A child’s citizenship cannot be revoked while the child has another responsible parent who is an Australian citizen or if revocation would result in the child becoming stateless.

Citizenship ceases at the time the decision is made revoking the child’s citizenship.

Section 52(1) provides that a decision under s36(1) to revoke a person’s Australian citizenship may be made to the AAT.

Historical cessation provisions

Renunciation under old Act

Some people who renounced their Australian citizenship under the old Act did so for reasons other than to retain or acquire another citizenship, or to avoid significant hardship or detriment. People who renounced their citizenship for other reasons are not eligible to resume their citizenship.

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Section 17 - repealed on 4 April 2002

The provisions applied to people 21 and over until 30 November 1973 and to people 18 and over on and from 1 December 1973. Before 1 December 1973, a person was ‘of full age’ if they were 21 or over. After this date, a person was ‘of full age’ if they were 18 or over.

Before 22 November 1984, an adult ceased to be an Australian citizen if they were outside Australia and acquired the citizenship of another country by some voluntary and formal act other than marriage.

If a person acquired the citizenship of another country on or after 22 November 1984, an assessment needs to be made on whether the ‘sole or dominant purpose’ of the person’s actions was to acquire the other citizenship. The key question is: ‘At the time they did the act or thing which resulted in the acquisition of the foreign citizenship, was their sole or dominant purpose to acquire that citizenship?’

Purpose is not to be equated with motive. The motive for acquiring the foreign citizenship (for example, to work, vote, claim unemployment benefits, etc.) is irrelevant (Gugerli Federal Court case). Changes of intention subsequent to performing the relevant act or thing are irrelevant.

Those who voluntarily applied for, and subsequently acquired, the citizenship of another country will usually find it difficult to establish that the ‘sole or dominant purpose’ of the act of applying was other than to acquire that citizenship. The fact that the reason behind the application was so that they would be eligible to obtain employment, hold a licence etc., does not mean that the ‘sole or dominant purpose’ was other than the acquisition of that citizenship.

From 22 November 1984, s17 contained an element of intention to acquire a foreign citizenship and established a link between the cause and effect of the act in question.

The element of intention (purpose) also means that s17 did not apply to a person who mistakenly thought they were applying for recognition of an existing citizenship (Gugerli Federal Court case).

If the person ceased under s17

If it is clear that a person has ceased Australian citizenship under s17, a person may be eligible to apply to become an Australian citizen again. Refer to Chapter 8 - Resuming citizenship.

Child born overseas to a person who ceased under s17

A child born overseas to a parent who ceased to be an Australian citizen because of s17 of the old Act prior to their child’s birth, may be eligible to apply to acquire Australian citizenship by conferral under s21(6) of the Act. Refer to Person born to former Australian citizen (s21(6)).

People born in Papua or New Guinea prior to PNG Independence

A person born in Papua would have lost their Australian citizenship, because of the operation of s17 of the old Act, if they retained their Australian citizenship on 16 September 1975 at PNG Independence but subsequently made a declaration of loyalty to PNG before 4 April 2002.

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People born in Papua who were under the age of 19 on 16 September 1975, and had a right of permanent residence in mainland Australia, or people born in New Guinea who were under the age of 19 years on 16 September 1975 and had been naturalised 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.

A person born in Papua or New Guinea prior to 16 September 1975 automatically lost their Australian citizenship under PNG legislation (not the old Act), if they had at least two grandparents of indigenous descent, and:

if born in Papua, had not acquired a right of permanent residence in mainland Australia or the citizenship of any other country, or

if born in New Guinea, had not acquired Australian or any other citizenship.


Section 20 - repealed on 8 October 1958

Australian citizens by registration or naturalisation automatically ceased to be Australian citizens if they were outside of Australia and New Guinea for a continuous period of 7 years between 26 January 1949 and 8 October 1958, unless:

they had given notice of intention to retain citizenship during the second and each subsequent year of their absence or at such other times, within the seven years, as specially approved by the Minister and/or

they were abroad in the service of an Australian government, an international organisation (of which Australia was a member) or an Australian employer or

they were a minor residing with their responsible parent or guardian who was an Australian citizen.

If a person holds a Certificate of Naturalisation or Certificate of Registration, the length and if necessary the purpose, of absences from Australia between 1949 and 1958 need to be considered. If an absence was for less than a full period of seven years before 8 October 1958, the person would not have ceased Australian citizenship under s20.

Section 23 - Child whose responsible parent ceased citizenship

A child may have ceased to be an Australian citizen under s23 of the old Act if a responsible parent ceased their Australian citizenship under s17 between 26 January 1949 and 3 April 2002 (the date of repeal of s17) or under s18 (renunciation), s19 (service in armed forces of an enemy country) or s21 (deprivation) and:

the child did not have another responsible parent who was an Australian citizen (this requirement only applied in cases where s17 operated on or after 22 November 1984) and

prior to 22 November 1984, there was only one responsible parent who, in most cases, was the father and

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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 child’s other citizenship does not need to be the same as that of the relevant responsible parent.

Burma - 4 January 1948

Burmese citizens domiciled in the Commonwealth on 4 January 1948 who did not make a declaration electing to remain a British subject, or Australian citizen, may have lost their British subject status.

PNG Independence - 16 September 1975

The two categories of people born in Papua prior to 16 September 1975 who ceased to be Australian citizens on Independence Day are not eligible to resume Australian Citizenship are:

people who had two PNG grandparents and did not have a right of permanent residence in Australia on 16 September 1975 (the PNG Independence (Australian Citizenship) Regulations 1975) and

people who had two PNG grandparents and the right of permanent residence in Australia, and before the age of 19 years renounced their Australian citizenship and made a Declaration of Loyalty to PNG. (PNG Independence (Australian Citizenship of Young Persons) Regulations 1980).

PNG grandparents are grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Strait Islands.

The two categories of people born in New Guinea prior to 16 September 1975 who ceased to be Australian citizens on Independence Day and are not eligible to resume Australian citizenship are:

people who had two PNG grandparents and had not been registered as Australian citizens by descent or naturalised as an Australian citizen prior to 16 September 1975 (PNG Independence (Australian Citizenship) Regulations 1975) and

people who had two PNG grandparents and had been registered as an Australian citizen by descent or naturalised as an Australian citizen prior to 16 September 1975 and made a Declaration of Loyalty to PNG before they turned 19 years of age (PNG Independence (Australian Citizenship of Young Persons) Regulations 1980).

People born in Papua and New Guinea who did not automatically cease to be Australian citizens on Independence Day may have subsequently lost their Australian citizenship under s17 of the old Act by making the Declaration of Loyalty to PNG or by acquiring the citizenship of another country, or lost their Australian citizenship as a child on or after 16 September 1975 when a responsible parent lost under s17.

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.

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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.

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Chapter 10 - Evidence of Australian citizenship

Overview of evidence 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 (s37(1)).

The giving of a notice of evidence of Australian citizenship does not make a person an Australian citizen if they were not already a citizen under the Act.

Applications for citizenship by conferral and for resumption of citizenship are also applications for evidence of Australian citizenship.

The Act refers to an application for ‘evidence’ of Australian citizenship, and that the Minister may give a person notice that they are an Australian citizen at a particular time. The notice must be in a form prescribed by the Regulations and contain any matters prescribed by the Regulations.

Since 1 July 2007, all evidence given under the Act will be in the same form. This means that every notice (or citizenship certificate) issued since that time will contain exactly the same information. There is no longer such a thing as ‘declaratory’ certificate. For information, refer to regulation 10 (Form of notice).

Ceremonial extract certificates are issued to person’s who acquire citizenship by descent (refer to Chapter 5 - Citizenship by descent) or s19C adoption (refer to Adoptions - Hague Convention or bilateral arrangement (s19C)). Extract certificates are not evidence notifications issued under s37 of the Act. Refer to Extract certificates.


Information contained on an evidentiary notice

Applications for evidence of Australian citizenship (s37)

Confirmation of Australian citizenship status for deceased persons

Cancellation and Surrender of Notices

Altering evidentiary notice (s39).

Extract certificates

A citizenship extract is a registered ceremonial document that is provided to people who acquire citizenship by descent (Part 2, Division 2, Subdivision A of the Act) or by adoption in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement (Part 2, Division 2, Subdivision AA of the Act). An extract certificate is not formal evidence of Australian citizenship and is not an evidence notification issued under s37 of the Act.

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A citizenship extract is issued so that it can be used by a person as proof of their Australian citizenship status with agencies that accept the extract certificates, such as DFAT. Extract certificates are of particular use for those clients who acquire their citizenship offshore and immediately apply for an Australian passport.

Information contained on an evidentiary notice The Regulations were amended on 1 July 2011 to support whole of government initiatives related to the management of identity in Australia and maintain the credibility and integrity of notices of evidence of Australian citizenship.

From 26 November 2012, a citizen’s current full name (the name that the applicant is known by according to acceptable identity documents) and date of birth will appear on the front of the notice and the names and dates of birth in which they obtained previous notices will be listed on the back. All instances where they obtained previous notices are to be recorded. This includes where a person may not have changed their name or date or birth but has previously obtained one or several notices.

The purpose is to have an official record of all previously issued notices, whether with the same or different names and/or date of birth, since Australian citizenship was first acquired.

An exception applies where a departmental error resulted in evidence being printed in the incorrect name or birthdate but the notice was voided before it was given to the client.

It is discretionary not to include previous names and/or dates of birth if an officer is satisfied inclusion of a particular name will endanger the client or another person connected to them.

There may be other situations that arise where an officer believes it is reasonable to omit previous details. Contact the Citizenship Helpdesk for additional guidance.

For guidance on identity, including issues relating to name, and changes of details, refer to Chapter 13 - Identity.

Applications for evidence of Australian citizenship (s37) Any person can apply for evidence of their Australian citizenship.

A finding of fact can be made on whether a person is in fact an Australian citizen and can be given a notice stating that the person is an Australian citizen under s37(2) at a particular time.

Many Australian citizens acquire citizenship automatically, refer to Chapter 4 - Automatic acquisition of citizenship. In these circumstances there may be no records held by the department and a finding must be made about the person’s identity and about their Australian citizenship status.

See:

Establishing Australian Citizenship status

Must be satisfied of identity

Certain evidence applicants - things to note

Decision making - evidence (s37)

Application requirements - evidence

Internal review of a decision to refuse evidence.

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Establishing Australian Citizenship status

Careful attention needs to be given to establishing the Australian citizenship status of the applicant.

Consideration needs to be given to whether:

a person may have ceased to be a citizen under automatic provisions contained in the 1948 Act, refer to Chapter 9 - Cessation of Australian citizenship

a person ceased to be an Australian citizen under the PNG Constitution at time of PNG Independence, refer to Chapter 19 - Papua, New Guinea, and Papua New Guinea

a person became a citizen under the transitional provisions of 26 January 1949, refer to Chapter 24 - Historical transitional provisions

Particular care should be given to those children born to Australian born men serving in the British Commonwealth Occupational Forces in Japan and other children born outside Australia prior to 26 January 1949 and

Women who married Australian men prior to 26 January 1949

relevant records may be missing from departmental systems and reference to historical and archive records is required and

the person acquired citizenship under an automatic provision.

Must be satisfied of identity

Section 37(4) requires that evidence of Australian citizenship must not be given unless the decision maker is satisfied of the identity of the person. Decision makers must ensure that their decisions are in accordance with this legislative requirement.

In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.

Identity is critical to a finding as to whether a person is in fact an Australian citizen.

Evidence of Australian citizenship must only be issued in a person’s current identity. A person’s current identity is the identity that is supported by authoritative officially issued documents.


Certain evidence applicants - things to note

See:

People born or adopted in Australia - 22 November 1984 onwards

Children in care

Children abandoned in Australia


People born in New Guinea before 16 September 1975.

People born or adopted in Australia - 22 November 1984 onwards

Refer to Chapter 4 - Automatic acquisition of citizenship.

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Children in care

With an application for evidence of Australian citizenship for children in care, that is, children not living with a responsible parent, it may be difficult to obtain information about the child without information from a responsible parent. An application for evidence of Australian citizenship for children in care is not necessarily invalid if it has been submitted without all of the supporting documents that are usually required. Consideration must be given to the particular circumstances of the case.

Departmental records should be used to obtain information where appropriate. A child protection officer may be considered a responsible parent for the purposes of signing the application form. Information from a child protection agency (for example NSW Family and Community Services - FACS) in the form of a letter detailing the circumstances of the child may also be required.

Children abandoned in Australia

For guidance on the acquisition of citizenship for children abandoned in Australia, refer to Citizenship for abandoned children (s14).

The policy regarding evidence applications for children in care (refer to Children in care) apply in these cases, and additional documentation regarding the child’s abandonment including a police statement is also required because there will be limited identity documentation available in these cases.


Most people born in Papua prior to 16 September 1975 who acquired PNG citizenship automatically on Independence Day are not Australian citizens and are therefore not eligible for evidence of Australian citizenship.

The PNG Constitution provided that Australian citizens born in Papua automatically became Papua New Guinea citizens on 16 September 1975 if:

they had at least two grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Strait Islands and

in the case of a person over 19 years of age born in Papua, they did not have a right of permanent residence in Australia nor the citizenship of a country other than Australia.

People born in Papua prior to PNG Independence who did not lose their Australian citizenship on 16 September 1975 are those:

who had less than two grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Strait Islands and who held the citizenship of a country other than Australia on PNG Independence Day or, and whose Australian citizen parent was born in one of the Australian states or internal territories or

who had at least two grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Strait Islands and had been granted the right of permanent residence in Australia or if over 19 years of age, held the citizenship of another country on PNG Independence Day.


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Most people born in New Guinea prior to 16 September 1975 who acquired PNG citizenship automatically on Independence Day are not Australian citizens and are therefore not eligible for evidence of Australian citizenship.

A person born in New Guinea prior to 16 September 1975 may be eligible for evidence of Australian citizenship if they:

were naturalised as Australian citizens under the old Act or

had been registered as an Australian citizen by descent under the old Act or

were born in New Guinea and were a British subject immediately prior to 26 January 1949 or

were a British subject and were ordinarily resident in New Guinea and Australian for the five year periods between 26 January 1944 and 26 January 1949 and

did not make a Declaration of Loyalty to PNG.


Decision making - evidence (s37)

Under s37(4) the Minister must not give a person a notice of evidence unless the Minister is satisfied of the identity of the person. Refer to Chapter 13 - Identity.

If an application for evidence of Australian citizenship is going to be refused it is expected that the client will be provided with procedural fairness before the decision is made.

Application requirements - evidence

A person may make an application to become an Australian citizen again (s29(1)).



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

Fees to accompany application (reg 12A)

Under regulation 12A, an application for evidence of Australian citizenship must be accompanied by the fee mentioned in item 20 of Schedule 3 unless that application is made at the same time and on the same form as an application (currently the case for conferral and resumption applications).

Internal review of a decision to refuse evidence

If the decision maker is not satisfied of the identity and/or citizenship status of an applicant, evidence must not be issued under s37 of the Act and the application refused.

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Section 52 of the Act does not provide for a review of a finding of fact to be made through the AAT, however the applicant may request an administrative review of the finding by writing to the Secretary.

The request must set out why they believe the finding of fact was incorrect and be accompanied by any new information they wish to have taken into consideration during the review process.

There is no fee for a request for an administrative review.

Confirmation of Australian citizenship status for deceased persons Children or grandchildren of deceased persons may make a request to the department for confirmation of the Australian citizenship status of their deceased parent or grandparent for official purposes. Deceased persons are not covered under the Privacy Act 1988 (Cth), therefore the department may, in some circumstances, provide information on their Australian citizenship status. People seeking evidence of a deceased person’s Australian citizenship status should not be referred to Freedom of Information.

They should complete and lodge a request for confirmation of Australian citizenship status of a deceased person. Completed forms must be accompanied by all supporting documentation, which must include a certified copy of the death certificate of the deceased person and birth certificates showing evidence of the applicant’s relationship to the deceased parent or grandparent, or evidence that the applicant is related to the deceased estate (for example, the solicitor).

The department will provide information in the following circumstances:

a child or grandchild requests citizenship status of their parent/grandparent for official purposes, for example, to enable them to apply for a foreign passport or

if evidence of citizenship is required for the settlement of a deceased estate.

The department will not provide information on the Australian citizenship status of deceased persons for unofficial purposes, such as genealogy or for the purposes of an Australian citizenship application.

Cancellation and Surrender of Notices Section 37(6) of the Act provides that the Minister may, by writing, cancel a notice given to a person under this s37 of the Act. Refer to Cancellation of evidentiary notice (s37(6)).

Section 38(2) provides that if the Minister cancels a notice under s37(6) the Minister (or their delegate) may request that person to surrender that notice in writing. Refer to Surrender of evidentiary notice (s38).

Cancellation of evidentiary notice (s37(6))

Section 37(6) of the Act provides that the Minister (or their delegate) may, by writing, cancel a notice given to a person under s37 of the Act.

A notice that which is evidence of citizenship is an accountable document, and would usually be cancelled in the following circumstances:

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a new notice is to be issued to the person

the person did not make a pledge, and as a result did not become a citizen, on the planned date

details on the notice are inaccurate

the person has ceased to be an Australian citizen

a notice was issued in error

the notice has been defaced/altered.

Prior to cancelling a notice in these circumstances procedural fairness processes should be followed and the client provided with an opportunity to provide reasons as to why the notice should not be cancelled.

Surrender of evidentiary notice (s38)

Section 38 provides that if the Minister has revoked a person’s Australian citizenship under s34 (revocation of citizenship), or cancelled evidence under s37(6) (evidence of Australian citizenship), the Minister can ask the person to surrender their evidence of citizenship.

A request for surrender of evidence of Australian citizenship must be made in writing and specify the day on or before which the person must surrender the evidence. The day must be at least 28 days after the day on which the request is made. The request must also specify how the person is to surrender the evidence and explain that a failure to comply with the request constitutes an offence.

A person commits an offence if they fail to comply with a request to surrender their evidence of Australian citizenship. The penalty is 10 penalty units.

Altering evidentiary notice (s39) Under s39 it is an offence to alter a notice which is evidence of Australian citizenship, including by amendment or endorsement. A notice which is incorrect may be cancelled and replaced.

Under s39 a person commits an offence if they alter or cause or permit to be altered a notice (evidence) of Australian citizenship given under s37 of the Act. The penalty is 12 months imprisonment.

Alterations which would give rise to prosecution under s39 include changes to personal particulars or other information with the intent to use the evidence in a fraudulent manner, for example, where a non-citizen’s details are substituted on the evidence for the purpose of obtaining benefits only available to an Australian citizen (such as an Australian passport).

Alterations such as framing or laminating of the evidence would not of itself give rise to prosecution under s39.

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Chapter 11 - Character

Overview of chapter The Act requires that applicants aged 18 and over who seek to become Australian citizens must be of ‘good character’. Good character is not defined in the Act. The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’.

It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an applicant is, or is not, of good character.

See:

When is good character considered

What is good character

s24(6) offence refusals and good character

Relationship between citizenship and migration legislation

Framework for making ‘good character’ decisions

Procedural fairness / natural justice

Recording the decision

Issues after decision and before pledge.

When is good character considered There is a good character requirement for all citizenship applicants aged 18 or over (who are not stateless) applying for Australian citizenship by:

Descent - s16(2)(c), s16(3)(c) (relevant decision making provision s17(1A))

Adoption under Hague Convention on Intercountry Adoption or bilateral arrangement - s19C(2)(g)

Conferral - s21(2)(h), s21(3)(f), s21(4)(f), s21(6)(d), s21(7)(d)

Resumption - s29(2)b), s29(3)(b).

The relevant decision making provisions are contained in:

s17(1A) - descent

s19D(2) - adoption

s24(1A) - conferral

s30(1A) - resuming.

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What is good character ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship (refer to What is good character).

Character considerations under the Migration and Citizenship Acts are not the same and it is possible that an applicant could have passed the migration character test but still not be of good character under the Act (refer to Relationship between citizenship and migration legislation).

Character considerations can still be relevant after an approval decision if it comes to the department’s attention that a person is under criminal investigation but has not been convicted, or is being investigated for the cancellation of a visa. If these circumstances exist, delegates are to consider whether the power at s26(3) may be used to delay an applicant making the Pledge and/or the cancellation of approval power at (s25) (refer to Issues after decision and before pledge).

See:

Definition of good character

Community standards

Australian values statement

Characteristics of good character.

Definition of good character

The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):

Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:

characteristics which have been demonstrated over a very long period of time

distinguishing right from wrong

behaving in an ethical manner, conforming to the rules and values of Australian society.

The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.

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This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):

The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

Community standards

In Zheng v Minister for Immigration and Citizenship ((2011) AATA 304), Forgie DP found the Preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character ((2011) AATA 304 at [119]).

The Preamble to the Act sets out the meaning of Australian citizenship.

After considering the text of the Preamble, Forgie DP stated ((2011) AATA 304 at [120]):

In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

The role of the citizenship decision maker is to assess, to the best of their ability, whether the applicant is of good character at the point of decision. Such an applicant is likely to uphold the pledge, should they be approved for citizenship.

Australian values statement

Another identification of community standards can be found in the Australian values statement. The Statement requires applicants to confirm that they will respect the Australian way of life and obey the laws of Australia before being granted a visa.

The values statement for holders of provisional or permanent visas also acknowledges that, if an applicant goes on to become an Australian citizen, they will enjoy reciprocal rights and responsibilities and that these responsibilities include obeying Australian laws.

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While the values statement will not apply to all citizenship applicants (applicants for citizenship by descent, adoption, resumption and those who acquired permanent residence before 17 October 2007 will not have signed the statement), it is a clear statement of community expectations that apply to all, including those who have migrated to Australia.

Characteristics of good character

Drawing from the definition outlined in Definition of good character, an applicant of good character would:

respect and abide by the law in Australia and other countries

be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)

be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

involvement in bogus marriage

concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

involvement in Centrelink or Australian Tax Office fraud

giving false names and/or addresses to police

not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)

not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia

not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people

not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide

not be the subject of any extradition order or other international arrest warrant

not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and

not be the subject of any verifiable information causing character doubts.

This list is not exhaustive and should be considered in conjunction with Framework for making ‘good character’ decisions.

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s24(6) offence refusals and good character Section 24(6) sets out circumstances related to the commission of offences in which the Minister must not approve an applicant for citizenship by conferral. If an applicant’s circumstances are specified in s24(6), the applicant must not be approved.

If s24(6) applies, the decision maker must also assess the applicant against the relevant eligibility criteria set out in the Act, including residence and character requirements. This further assessment is required because, if the applicant seeks review at the AAT, the circumstances that led to the prohibition on approval under s24(6) may no longer exist at the time of review.

As the AAT may set aside for the primary decision and remit the matter to the department to reconsider, it is considered an inefficient use of resources for the department to go through the decision making process twice on the same matter, and for the AAT to deal with another review if the applicant is refused on another ground and seeks review for the second decision.

However, if the s24(6)(a) (pending proceedings) prohibition applies, the decision maker must refuse to approve the application on that basis. An assessment of ‘good character’ cannot be made because the outcome of the proceedings would be a relevant consideration in such an assessment. An exception to this would be if the applicant already has a criminal record which might cause the delegate to refuse the applicant both under character and under the prohibition.

For further information on the offence provisions for conferral, refer to Offences (s24(6)).

Relationship between citizenship and migration legislation Everyone who wants to enter or stay in Australia must satisfy the character requirements as set out in section 501 of the Migration Act. If a person does not pass the character test, their visa application may be refused or their visa cancelled. The character test comprises several limbs that capture a wide range of non-citizens of character concern, including non-citizens who do not have criminal convictions, but are nevertheless determined to be a risk to the Australian community.

Decisions to cancel or refuse visas on the basis of the character test are made after full consideration of all the circumstances of the case. These decisions take into account a wide range of factors, including the protection of the Australian community, the best interests of any minor children in Australia, Australia’s international legal obligations and the ties that a person has to Australia.

A permanent visa may also be cancelled on other grounds under the Migration Act, including under section 109 or section 116(1AB) in circumstances where a person gave incorrect information to obtain their visa, or under section 116(1AA) where the Minister is not satisfied as to a person’s identity.

Note: A decision not refuse or cancel a visa on character grounds is not binding on a citizenship decision maker. Whether or not a citizenship applicant is of good character for the purposes of the Citizenship Act is a separate consideration.

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Framework for making ‘good character’ decisions The citizenship character assessment is informed by the applicant’s character prior to applying for a visa and during their time in Australia. It is an assessment of all the available information to date, including any information provided in the visa application process and while the applicant has been a visa holder in Australia. Decision makers can also seek additional information such as requesting further overseas penal clearances or asking to refer to original documentation which may or may not have been part of the visa process. For further information, refer to Criminal / police checks.

See:

Factors to not take into account

Weighing up the character decision

Waiting for further information.

Factors to not take into account

For guidance on the factors to take into account when assessing good character, see:

Travel plans

Review by the AAT.

Travel plans

Sometimes applicants will argue that they need to become Australian citizens urgently because they need to travel. Generally, this is not a relevant factor and a decision must be made on the merits of the application itself.

It is the responsibility of the applicant to maintain the currency of any travel documents issued by their other country of citizenship, where possible. If there are particular reasons why this could not be done, the applicant could contact DFAT concerning emergency documents which may be available, depending on the circumstances of the case.

Review by the AAT

The possible outcome of an application to the AAT for review of a decision to refuse an application for citizenship is not a relevant consideration in deciding whether or not an applicant meets the requirements of the Act.

Weighing up the character decision

Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

would a person of good character have behaved the way the applicant did

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what is there to demonstrate that the applicant has upheld and obeyed the law

has the applicant behaved in accordance with Australia's community standards

does the applicant share Australia’s democratic beliefs and respect its rights and liberties.

In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:

‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’

A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.

If a person has committed a very significant offence (such as taking the life of another person, sexual assault, crimes against children, war crimes, crimes against humanity, genocide) the lasting/enduring period would be much longer, potentially over a period of many years. In such an assessment, the nature of the significant offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Thus, it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.

Refer to Recording the decision.

Waiting for further information

If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.

However, there may be circumstances where a decision maker is waiting for relevant information and can postpone making a decision. For example, the decision maker has insufficient evidence to decide if an applicant meets the criteria set out in s21(2) relating to character and further investigations are required to obtain this evidence. Examples might be waiting for:

an overseas penal clearance

the outcome of a visa refusal or cancellation consideration by another area of the department or

an assessment by another agency.

The period of the delay must be reasonable. The period of reasonableness will be guided by the merits of each case.

Criminal / police checks

See:

Interpol Red Notice

Onshore police checks

Overseas penal clearance

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Decision maker can request an overseas penal clearance

Family migration

New Zealand applicants for conferral

Applicant unable to provide overseas penal clearance

Elderly applicants.

Interpol Red Notice

Cases with an Interpol Red Notice require liaison with Headquarters.

Onshore police checks

National Police Checking Service (NPCS) checks are to be carried out on all applicants 16 and older. For those applicants aged 16 or 17 at the time of application, the results of the checks are used to assess the applicant against the s24(6) offences provisions.

For adult applicants, the information is also used for the character assessment. If the departmental check with the NPCS reveals a record, decision makers are to comply with standard procedural fairness processes and send a natural justice letter to the applicant. This also ensures that the applicant is the owner of the NPCS record. If the applicant states that they did not commit an offence, decision makers are to follow the dispute resolution processes outlined in the NPCS manual and refer the matter to Headquarters.

Applications under s16 (descent), s21(6) (born to a former citizen) and s21(7) (born in Papua) differ from other conferral applications in that most adult applicants have lived in a country other than Australia prior to lodging their application and some applicants may never have travelled to Australia or undergone migration screening. However, if the applicant has entered Australia, an onshore NCPS check is also required.

Overseas penal clearance

Conferral applicants should be asked for an overseas penal clearance:

where the applicant has lived or travelled outside Australia since turning 18 and

held a permanent Australian visa at that time and

the total time spent outside Australia added up to 12 months or more and

the time spent in any one country was more than 90 days

or

as requested by the department.

Applicants for descent, resumption or full Hague Convention or bilateral arrangement adoption aged 18 and over are to provide an overseas police clearance if, in the last 10 years:

the applicant has lived or travelled outside Australia since turning 18 and

the total time outside Australia added up to 12 months or more and

the time spent in any one country was more than 90 days

or

as requested by the department (refer to below).

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The applicant will need to provide original overseas penal clearance certificates for each country where they spent more than 90 days.

Decision maker can request an overseas penal clearance

If the decision maker considers it relevant to the assessment of an applicant’s claims of good character, they can request an overseas penal clearance certificate irrespective of the amount of time a person has spent overseas, or the period of time spent within a country.

Decision makers are strongly encouraged to request overseas penal clearances for a period of longer than 10 years if an applicant for descent is older than 28, and therefore has an adult period of life not covered by the 10 year time period set out on the application forms. Decision makers should consider:

the age of the applicant

what period of the applicant's life is not covered by the 10 year clearance (e.g. the 50-year-old applicant would only have time between 40-50 covered by the 10 year period, however could have committed offences when aged between 18-39) and

whether they have spent any time in Australia or whether this is the first time the applicant has had any contact with the department.

Family migration

Under the family migration programme, it is possible for people to be granted a visa even if they have committed offences offshore.

If there is any indication of offshore offences, or if offences have been committed onshore, regardless of the time since the applicant became a permanent resident, the decision maker should ask the applicant to provide another overseas penal clearance.

New Zealand applicants for conferral

New Zealand citizen applicants who do not hold a permanent visa (that is, those who hold a subclass 444 visa) are required to obtain overseas penal clearance certificates from New Zealand and any other country they have been to for any period of time after turning 18 because generally they have not provided those certificates prior to becoming resident in Australia.

This applies to New Zealand citizen applicants aged 18 or over regardless of how long the person has resided in Australia. New Zealand citizens who arrived in Australia before the age of 18 and have not left Australia since are not required to provide the overseas penal clearance certificate.

There may be instances where a New Zealand citizen was born in another country and acquired New Zealand citizenship by conferral. It may be appropriate to request overseas penal clearances from the country of birth in such cases.

Applicant unable to provide overseas penal clearance

Applicants may not be able to obtain police clearances for several reasons, for instance certain countries may not allow individuals to obtain penal clearance certificates. The procedures for dealing with these cases are set out in PAM3: Sch4/4001 Penal checking procedures.

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Elderly applicants

Some elderly applicants are not able to provide viable fingerprints which form the basis of an overseas penal clearance. If they are able to provide evidence that they attempted to provide fingerprints but an overseas police agency has decided that the fingerprints were not viable, it is possible to accept a police check done only on the basis of the applicant's name.

Quashed, pardoned and spent convictions

See:

Quashed or pardoned convictions

Spent convictions.

Quashed or pardoned convictions

Under the Crimes Act applicants are not required to disclose quashed convictions (that is, a conviction that has been set aside by a court) or pardoned convictions (that is, where the person has been given a free and absolute pardon because they were wrongly convicted). Where a decision maker does become aware of such convictions, they may not be taken into account.

Spent convictions

A spent conviction is a conviction for which a person:

has been granted a pardon for a reason other than that the person was wrongly convicted of the offence or

was not sentenced to more than 30 months imprisonment, it is 10 years (5 years for juvenile offenders) since the date of conviction and the person has not re-offended during the 10 years (5 years for juvenile offenders) waiting period.

Applicants are required to disclose all spent convictions in their citizenship applications because such applicants are excluded from the operation of the spent conviction regime. This also applies to crimes committed in other countries that may be spent under foreign legislation.

War crimes, crimes against humanity and/or genocide

Individuals involved in war crimes, crimes against humanity and/or genocide may seek to enter, or currently reside in, the Australian community. However, it is government policy that Australia should not be a safe haven for war criminals.

Involvement or suspected involvement in the commission of war crimes, crimes against humanity and/or genocide is an important consideration in the assessment of a person’s character for the purposes of the Act. A person may have been involved even when there is no criminal conviction, for example because the applicant has undertaken military or similar service or held a position of authority in a country that has experienced conflict or serious human rights abuses.

Some characteristics which may stand out from the application form, or interview, include:

the applicant's admission of involvement in war crimes, crimes against humanity and/or genocide

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military/paramilitary history

weapons training

certain occupations (such as prison guards, members of private militia, guerrilla groups or liberation organisations) or

membership of an organisation that has been linked to war crimes, crimes against humanity and/or genocide.

See:

Involvement in war crimes, crimes against humanity and/or genocide (without conviction)

Adverse assessments

Non-adverse assessments

No assessment can be provided.

Involvement in war crimes, crimes against humanity and/or genocide (without conviction)

It is not necessary that the applicant has a conviction relating to war crimes, crimes against humanity and/or genocide. A person could have directly participated in the commission of such crimes, or had an association with persons or organisations alleged to have committed such crimes, while undertaking military or similar service or holding a position of authority in a country that has experienced conflict and serious human rights abuses. A person may have provided financial support to an organisation alleged to have committed such crimes.

Adverse assessments

As with all cases where the decision maker intends to take into account adverse information, procedural fairness must be provided to applicants subject to an adverse war crimes assessment. Special References will advise if any information contained in an adverse assessment must not be released to the applicant.

Non-adverse assessments

If Special References has provided an assessment about an applicant with no adverse information, processing of the application for Australian citizenship can proceed as usual.

Sometimes Special References will find some information that may be relevant to your consideration of the applicant’s good character, but this information may not be directly related to war crimes or it may not be enough to reach a reasonable suspicion of involvement in war crimes. In these circumstances, Special References will provide this additional information together with the non-adverse finding.

No assessment can be provided

Special References may advise that an assessment cannot be undertaken because the applicant has not provide the requested information, for example, if the applicant does not provide their military service record. In these circumstances, decision makers should seek further evidence from the applicant.

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If the applicant does not provide the information requested, decision makers should advise the applicant that the character assessment will be made on the available information, and in the absence of the requested information, it may not be possible for the decision maker to be satisfied the applicant is of good character.

For further information regarding war crimes assessments for citizenship applicants, refer to PAM3: Act - Character - War Crimes - Screening of visa and citizenship applicants.

References

Referee reports can shed light upon an applicant's character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.

More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.

It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.

Decision makers should give little weight to references which are identical, or very similar, in wording.

Procedural fairness / natural justice If there is adverse information regarding an applicant such that a decision maker is likely to refuse the application, the information should be put to the applicant, at interview or in writing. The applicant should be invited to respond to, or comment on, the information within the time periods set out in Time period given for response. The refusal decision record must detail the information relied on, the applicant’s response and the basis for the decision.

If checks do not reveal a criminal record and, after consideration of all the relevant information, the decision maker is satisfied that the applicant is of good character, any adverse information that is not relevant to the citizenship decision need not be put to the applicant. The decision maker may decide they are satisfied that the person is of good character and should record the reasons for the decision to approve.

Refer also to Procedural fairness / natural justice.

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Recording the decision When preparing a decision on good character, it is best practice for decision makers to incorporate the following steps:

identify any offence or other reason why the person may not be of good character

summarise the nature of the offence/incident, its seriousness, victims, other matter

identify any mitigating factors and summarise them

analyse any references and identify the weight given to each of them

summarise any relevant adverse information put to the client for comment, as well as their response

identify where weight was placed on each of the factors in making the decision and provide reasons

record the decision.

A full decision record must be made for every decision where someone is found not to be of good character. This will be used if the applicant seeks review of the decision in the AAT.

A detailed file note must also be made in all cases where adverse information is present but a person was found to be of good character in any event. The reasons for this decision should be set out. This will allow the decision to be understood if there is a need to go back to the file at a later date.

Issues after decision and before pledge If, after an application for conferral of Australian citizenship has been approved, it comes to the department’s attention that the person is under criminal investigation but has not been convicted, or is being investigated for cancellation of a visa, the making of the pledge of commitment by the person may be delayed under s26(3) of the Act.

The approval of an application may be cancelled if a person is found to be not of good character (s25(2)(b)(ii)). Such a decision would be made if information is available that was not considered at time of approval or if new information comes to light. For details on the cancellation procedure including natural justice obligations, refer to Minister may cancel approval (s25).

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Chapter 12 - National security

Overview to chapter The national security provisions prohibit the approval of a citizenship application where the Australian Security Intelligence Organisation (ASIO) has issued an adverse security assessment or qualified security assessment against the applicant. Such an assessment will be made where the applicant is a direct or indirect risk to the security of Australia.

Note: In accordance with the Convention on the Reduction of Statelessness, these provisions apply differently to stateless people.

The national security provisions apply to applicants for Australian citizenship by descent (s17) by adoption in accordance with the Hague Convention on Intercountry Adoption or bilateral arrangement (s19), by conferral (s24) and by resumption (s30).

Refer also to:

descent - National security (s17(4) to s17(4B))

s19C adoption - National security (s19D(5) to s19D(7A))

conferral - National security (s24(4) to s24(4D))

resuming - National security (s30(4) to s30(7)).

Definitions relating to national security The following terms are relevant to the national security provisions and are defined by s3 of the Act:

adverse security assessment - refer to Definitions

qualified security assessment - refer to Definitions

national security offence - refer to Definitions.

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Chapter 13 - Identity

Overview of the identity provisions The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.

In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.

An identity provision applies for each citizenship acquisition, evidence or cessation applicant, see:

descent - Identity (s17(3))

s19C adoption - Identity (s19D(4)

conferral - Identity (s24(3))

resuming - Identity (s30(3))

renunciation by application - Decision making - renunciation by application (s33)

evidence - Must be satisfied of identity.


Concept of identity

Name to be used

Changes to name or other identity information

Citizenship and the FOI Act.

Concept of identity The concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2004). Refer to www.ag.gov.au/RightsAndProtections/IdentitySecurity/Documents/NationalIdentityProofingGuidelines.pdf

Identity assessment

On 10 June 2015, the ANAO tabled in Parliament the performance audit “Verifying Identity in the Citizenship Programme” (the identity audit). The identity audit made five recommendations covering development of guidance on establishing identity, programme management and notification tools for use in tracking how the programme manages its cases where there are questions about an applicant’s identity. The department agreed to these recommendations. To this end the department is developing an Identity Assessment Framework for Citizenship which will apply to all applicants.

https://www.ag.gov.au/RightsAndProtections/IdentitySecurity/Documents/NationalIdentityProofingGuidelines.pdf

https://www.ag.gov.au/RightsAndProtections/IdentitySecurity/Documents/NationalIdentityProofingGuidelines.pdf

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Name to be used The application must be made in the most recent name that the applicant has been known by according to acceptable identity documents, the applicant’s ‘current full name’. This mirrors s53 (Name on travel documents) of the Australian Passports Act 2005 (the Passports Act). Section 53 of the Passports Act incorporates amendments made under the Passports Legislation Amendment (Integrity) Act 2015 that came into force on 8 October 2015.

For citizenship purposes, the applicant’s current full name would be the most recent name that appears on acceptable official forms of identifying documents.

The allowable identity documents relating to the applicant’s name for the purposes of a citizenship application would include officially issued documentation such as:

birth and adoption certificates

official change of name documentation

marriage, divorce or other relationship status certificates or entry records

official passports.

Refer also to:

Indigenous Australians, birth not registered

Single name only

International naming conventions.

Indigenous Australians, birth not registered

An Indigenous Australian whose birth has not been registered in a state or territory may use a name by which he or she is generally known, the general use of which is confirmed by the person’s community elders, or supported by other evidence. This policy mirrors section 25(4) of the Australian Passports Determination 2015, which commenced on 1 October 2015.

Single name only

In cases where a person’s entire name was previously listed as a single name (as either a single family name or single given name) on their identity document/s (for example, on their foreign passport or other official forms of evidence used to show the person’s current full name), the department must record the entire name as a last name.

The department is bound by requirements regarding the recording of names, including those specified by the International Civil Aviation Organization (ICAO) and covered by the Australian Privacy Principles.

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The ICAO guidelines specify an international standard for machine-readable travel documents (including passports). The Australian government has agreed to abide by the ICAO guidelines. Under the ICAO guidelines the family name is recognised as the primary identifier for machine-readable travel documents and the department must therefore ensure that a family name is always recorded for every client. For these reasons, the department’s system will only accept a single name being entered in the family name field regardless of whether the identity documents show the single name as a single family name or a single given name. Similarly bound, Australian passports are required to always include a family name.

In such cases the citizenship client should be informed that their name will be recorded as a single family name and that their name will appear as a single family name on their Australian passport if they decide to apply for one. A client who decides to officially change their name by splitting it into separate given and family names after acquisition of citizenship would be required to apply for Evidence of Australian citizenship in the changed name if updated citizenship evidence is desired.

International naming conventions

In some countries, names are presented on birth certificates and passports in a manner different from the usual Australian practice. The department has produced a guide on naming conventions, refer to TRIM ADD2015/1544519.

Different order of names used in some countries

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 so that the first name/s appear first, followed by the middle name/s (if any), and the family name/s last.

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.

Customs regarding maiden and married names in passports

Refer to the department’s naming convention guide (TRIM ADD2015/1544519).

Changes to name or other identity information If the applicant has changed their name, date of birth, sex or gender they will need to provide evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.

See:

Change of name

Changes to date of birth

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Change of sex and/or gender.

In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name or a change of name after marriage.

However, a change to personal/biographical data is a serious matter if the change leads to a different identity.

A change of identity (changes to component(s) of the person’s identity) diminishes the usefulness of the results of the security and criminal checks. 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.

Under previous policy, clients were able to nominate the name they wished to have their Australian citizenship application processed under. Most commonly, migrants chose to nominate a common usage name that they were known by in the community. This was often an anglicised version of their name.

In most cases the client will not have a formal change of name document but their original identity will be noted on the original citizenship application.

This policy is no longer in place, however, where this has occurred in the past and the client is seeking new evidence of citizenship they may still have that evidence in the name in which they first acquired citizenship. In these circumstances the link between the original and nominated name should be researched and confirmed.

Decision makers are to take into account the change of a person’s details if they have had their records (for instance name and/or date of birth), amended by a state/territory registrar of births deaths and marriages or under the Freedom of Information Act 2010 (the FOI Act). Refer also to Citizenship and the FOI Act.

In reaching a finding of fact about the person’s identity, decision makers are expected to consider issues such as:

the reason that the person provided the original personal information relating to their identity when they applied for citizenship

the reason for changing their personal information

whether the person has had any other amendments such as dates of birth/names and the reasons for those changes

the documentation that was provided to support the change of personal information.

Particular care and sensitivity is to be given to applications from:

Indigenous Australians who may have little or no documentation. Note: Proof of Aboriginality documents are issued by a range of organisations throughout Australia and attest to the holder's identification as an Aboriginal person, their Aboriginal descent and their acceptance as an Aboriginal person by an Aboriginal community. The department gives weight to Proof of Aboriginality documents as evidence of identity. In respect of a child, a letter from a government agency that states the relevant state or territory government Minister is or was the legal guardian of a child would also be given weight as evidence of the child's identity. Refer also to Indigenous Australians, birth not registered).

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British and Maltese child migrants who may have limited documentation - these clients may seek assistance through the Child Migrant Trust.

People born in Australia whose births have not been registered.

Change of name

Official evidence of change of name would usually be documents issued by an Australian Registry of Births, Deaths and Marriages (RBDM), change of name/detail certificates, marriage certificate, divorce certificate, death certificate issued in relation to a spouse, adoption certificate, a court order stating that the applicant is to be known by a new name, or a decree issued by a court.

Marriage, divorce and relationship certificates, both Australian and foreign issued, can only be used for changes to the person’s surname only. If the applicant is using a different given name/s they will need to provide evidence of formal name change such as a change of name certificate. This policy mirrors s53(6) of the Passports Act and s25(8) of the Passports Determination.

Change of child’s name by the adopting parent(s)

It is very common for the adopting parents to change the child’s 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 should require some other form of official evidence to support the change of name.

Refer to the department’s naming conventions guide: TRIM ADD2015/1544519.

Changes to date of birth

Some applicants provide a RBDM certificate with a change in the date of birth. The relevant state legislation for the births, deaths and marriages should be checked to ensure that RBDM is provided with a power to change a date of birth and what evidence is needed to do this. The delegate should then place weight on the certificate, rather than being bound by the information on it.

Change of sex and/or gender

The Australian Government Guidelines on the Recognition of Sex and Gender (the Sex and Gender Guidelines), commenced on 1 July 2013 and are to be implemented across all Australian Government departments and agencies by July 2016. Paragraph 21 of the Sex and Gender Guidelines provides information about the types of evidence that would be considered sufficient in relation to changes to a person’s sex and/or gender.

For citizenship purposes, in accordance with paragraph 21 of the Sex and Gender Guidelines, official evidence of changes to sex or gender would include:

a statement from a Registered Medical Practitioner or a Registered Psychologist

an amended birth certificate which specifies the person’s preferred gender

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a gender recognition certificate

a recognised details certificate showing recognition of the change of sex.

Refer to TRIM ADD2015/1578852.

Citizenship and the FOI Act There are differences in the threshold of evidentiary requirements between the Freedom of Information Act (the FOI Act) and the Act. An Australian citizen may have their request to amend their name or details approved by an FOI officer, then refused by a citizenship officer if they are unable to meet the identity requirements of the Act.

Decision makers are to avoid feeling compelled to lower their threshold of evidentiary requirements where a client’s request to amend their details has already been approved under FOI.

While amendments made to a person’s identifying information under the FOI Act should be taken into consideration when making a finding, the FOI amendment is not binding on an officer who is required to make a decision under the Act.

A delegated officer under the Act should not under any circumstances amend the record in the Department’s system to override an amendment made by a delegated FOI officer.

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Chapter 14 - Personal identifiers

Overview of personal identifiers Division 5 of Part 2 of the Act sets out 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.

Refer to:

Personal identifiers and identity

Offences under the Act

What are personal identifiers

Definitions relating to the personal identifier provisions

Personal identifiers under the Act (s10)

Obtaining personal identifiers

Obligations relating to identifying information

Accessing identifying information (s42)

Disclosing identifying information (s43)

Unauthorised modification or impairment of identifying information (s44)

Destroying identifying information (s45).

Personal identifiers and identity

Several provisions in the Act require that the Minister must be satisfied of the applicant’s identity.

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 person’s identity. If a person’s identity cannot be verified the application cannot be approved. In addition, if the Minister is not satisfied of a person’s identity they cannot sit a test. This is set out in the Minister’s determination made under s23A of the Act.

Offences under the Act

There are a number of offences under the Act relating to the unauthorised access, disclosure, modification or impairment, and destruction 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. Refer to:





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What are personal identifiers 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, as defined in s10 of the Act, a personal identifier is any of the following in actual or digital form:

fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies) - refer to Fingerprints or handprints of a person

a measurement of a person’s height and weight - refer to Measurement of a person’s height and weight

a photograph or other image of a person’s face and shoulders - refer to Photograph or other image of a person’s face and shoulders

an iris scan - refer to Iris scan

a person’s signature - refer to Person’s signature and

any other identifier prescribed by the Regulations (refer to 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.

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.

Definitions relating to the personal identifier provisions Definitions relating to personal identifiers and the personal identifier provisions are set out in Part 1 of the Act for:

disclose (s3 of the Act)

entrusted person (s3 of the Act)

identifying information (s3 of the Act)

personal identifier (s3 of the Act) and

personal identifiers (s10 of the Act).

Refer to Definitions.

Personal identifiers under the Act (s10)

Fingerprints or handprints of a person

Generally fingerprints are not requested from citizenship applicants.

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Measurement of a person’s height and weight

These measurements are not currently required to be provided.

Photograph or other image of a person’s face and shoulders

This personal identifier is required to be provided if a person seeks to make an application for citizenship or evidence of citizenship.

When making an application for citizenship, or evidence of citizenship, the photograph must be endorsed on the back by a person who meets the policy guidelines for the purposes of making an Identity Declaration. The photograph or other image is to be similar to a passport photo, that is, to be clear and show a person’s features enough to allow a person to be recognised by the image.

‘Photograph’ includes a digital image taken by an officer of the department.

Iris scan

Iris scans are not currently required to be provided.

Person’s signature

This personal identifier is currently required to be supplied with an application.

Any other identifier prescribed by the regulations

Currently, no additional identifiers are prescribed.

Obtaining personal identifiers

Request for personal identifiers (s40)

Under s40 a request may be made for one or more personal identifiers so that the Minister or delegate can be satisfied as to the identity of a person in relation to an application for citizenship or sitting of a test or an application for evidence of Australian citizenship.

When registering for a test, people will be required to either have a digital facial image taken by a departmental officer or provide an appropriate photograph at the time of sitting the test.

All citizenship applicants (including those applying for evidence) 16 years and over, are required to provide an endorsed photograph and sign the application form.

A specific request for one or more personal identifiers under s40 can only be made by a person delegated by the Minister under s40.

Provision of personal identifier (s41)

Regulation 11 (Personal identifiers, for s40(2) of the Act) provides that a request must inform the applicant of the following matters:

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why a personal identifier must be provided

how a personal identifier may be collected

how a personal identifier may be used

the circumstances in which a personal identifier may be disclosed to a third party

that a personal identifier may be produced in evidence in a court or tribunal in relation to the applicant who provided the personal identifier

that the Privacy Act 1988 applies to a personal identifier, and that the applicant has a right to make a complaint to the Privacy Commissioner about the handling of personal information

that the Freedom of Information Act 1982 gives a person access to certain information and documents in the possession of the Government of the Commonwealth and of its agencies, and that the applicant has a right under that Act to seek access to that information or those documents under that Act, and to seek amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

These matters have been included in all citizenship application forms. Any other requests need to ensure that the matters are covered on each occasion a request is made.

Obligations relating to identifying information The obligations relating to identifying information are set out in Part 2, Division 5, Subdivision B of the Act, refer to:





Accessing identifying information (s42) Section 42 provides:

that unauthorised access to identifying information is an offence and sets out the penalties for an offence

the circumstances in which personal identifiers can be lawfully accessed and

that the Minister may authorise specified people or classes of people to access identifying information.

Offences and Penalties

Under s42 of the Act it is an offence for a person to access identifying information unless they are authorised to access the information for the purpose for which they have accessed it. The penalty is imprisonment for two years or 120 penalty units or both.

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A person does not commit an offence if there is reason to believe that accessing the identifying information is necessary to prevent or lessen a serious and imminent threat to life or health of the person or any person. The person would need to be able to prove that they reasonably believed the threat to life and health was the purpose of the access.

A person does not commit an offence if the access of the personal identifier is through a disclosure that is a permitted disclosure (s42(2)(a)).

Offence provisions do not apply to people who access information via a ‘secondary disclosure’ to which s43(1)(a) applies (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.

Authorised access - offence provisions do not apply

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.

Access authorised by the Minister

People can be authorised by the Minister to access identifying information for the purposes set out in s42(4). These purposes are intended to cover the circumstances in which people would need to access identifying information in the course of carrying out their duties as decision makers under the Act. Departmental officers must establish that they have the required authorisation before accessing identifying information.

Serious and imminent threat to life or health

Any disclosure of identifying information to prevent or lessen a serious threat to the life or health of a person may significantly disadvantage the person to whom the information relates. Consideration should therefore be given to whether there are any effective alternatives to accessing the identifying information.

The threatened harm must involve serious bodily injury, serious illness or death. The threat must be imminent or about to happen. The threat need not apply to a specific person. It may be a threat of serious harm to be randomly inflicted.

What is a ‘serious’ threat depends on the particular circumstances of each case. An explicit threat of murder or serious assault would usually be regarded as a serious threat, as would a threat of infection with a life-threatening condition. Threats of contracting (or being denied effective treatment for) a serious medical condition are regarded as threats to life or health. Abuse directed to staff in general does not usually count as a serious threat. Threats to finances or reputation are not threats to life or health.

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Disclosing identifying information (s43) Section 43 provides that conduct causing disclosure of identifying information is an offence unless the disclosure is a permitted disclosure under s43(2), and sets out the penalties for the offence. Section 43 also provides the following two exceptions to the offence provision:

further disclosure by a person who is not an entrusted person but who obtained the information as a result of a permitted disclosure and

where the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health of a person.

Personal Identifiers collected prior to 17 September 2009

There is no authority to disclose facial images collected under the Act prior to 17 September 2009.

Offences and penalties

Under s43 a person commits an offence if that person’s conduct causes disclosure of identifying information and the disclosure is not a permitted disclosure. The penalty is imprisonment for two years or 120 penalty units or both.

A person does not commit an offence if there is reason to believe that disclosing the identifying information is necessary to prevent or lessen a serious and imminent threat to life or health of the person or any person. The person would need to be able to prove that they reasonably believed the treat to life and health was the purpose of the disclosure (s43(1B)).

Where there has been a disclosure to a person who is not an entrusted person and the disclosure is a permitted disclosure, the offence provision does not apply to any further disclosure of the identifying information to a person who is not an entrusted person (s43(1A)).

Permitted disclosure

Section 43(2) contains permitted disclosures. Clarifying points include:

‘(c) is for the purpose of administering or managing the storage of identifying information…’. This includes provision of identifying information to people employed by organisations providing file management and storage services to the department.

‘(d) is for the purpose of making the identifying information in question available to the person to whom it relates …’. This includes, for example, complying with a request by an applicant or former applicant for information under the Freedom of Information Act 1982.

‘(e) take place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory …’. Currently there are no arrangements in place.

‘(ea) is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State or a Territory …’. A link between the proposed disclosure and the enforcement of the criminal law is strong enough to say that the use or disclosure is reasonably necessary to enforce the criminal law.

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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.

Unauthorised modification or impairment of identifying information (s44) Section 44 provides that a person who is not authorised or entitled to modify identifying information, or impair the reliability of identifying information, or impair the security of the storage or the operation of a storage system of identifying information commits an offence if they:

intentionally modify, or substantially contribute to the modification of identifying information or

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intentionally impair, or substantially contribute to the impairment of, the reliability of identifying information, or the security of the storage of identifying information, or the operation of a storage system of identifying information and

know that their actions are unauthorised.

Modification or impairment is not unauthorised simply because the person has an ulterior motive for causing the modification or impairment.

Modification

‘Modification’ means changing or altering. For example:

digitally altering a facial image so that it no longer looks like the person or

changing a person’s signature so that it no longer has the characteristics of the person’s signature.

The following actions are not considered to constitute modification:

scanning a hard copy of a photograph to create a digital facial image

cropping a photograph to enable it to be scanned or

photocopying a document containing a person’s identifying information and blacking it out on the photocopy before disclosing the document to a third party (in accordance with the provisions of the Act and or the Privacy Act, whichever is appropriate).

Impairment

‘Impairment’ means damaging or weakening or making worse. For example:

intentionally de-linking a facial image from a client record and connecting it to another person’s identity information or

intentionally allowing another person to access a system storing identifying information that the other person is not authorised to access.


Modification or impairment by a person is unauthorised if the person is not entitled to cause it.

It is an offence if a person causes, or intends to cause, any unauthorised modification to identifying information, and the person knows the modification is unauthorised. The penalty is imprisonment for two years or 120 penalty units or both.

It is an offence if a person causes, or intends to cause, any unauthorised impairment of the reliability of identifying information, the security of the storage of identifying information or the operation of a storage system of identifying information. The penalty is imprisonment for two years or 120 penalty units or both.

Where there has been a disclosure to a person who is not an entrusted person and the disclosure is a permitted disclosure, the offence provision does not apply to any modification or impairment of that identifying information by a person who is not an entrusted person, refer to s43(1A).

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Modification of identifying information, impairment of the reliability of identifying information, impairment of the security of identifying information, and impairment of the operation of a system by which identifying information is stored is unauthorised if the person is not entitled to cause that modification or impairment (s44).

A person is said to have caused an unauthorised modification or impairment if the person’s conduct substantially contributes to it. The person may also have committed an offence.

An unauthorised modification or impairment of the identifying information is allowed if it is required under a warrant issued under an Australian law, unless identifying information is lawfully disclosed by an entrusted person to someone who is not an entrusted person who afterwards modifies or impairs the information, in the manner described above.

Not an offence

Section 44 also provides the following exceptions to the offence provisions:

modification or impairment of identifying information by a person who is not an entrusted person and received the identifying information as a result of a permitted disclosure and

where the modification or impairment is done pursuant to a warrant issued under an Australian law.

Destroying identifying information (s45) 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 person’s height and weight, or a photograph or other image of a person’s face and shoulders, or a person’s 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.


Under s45 identifying information is to be kept by the department for as long as it is required to be kept by law.

If there is no longer a purpose or reason for keeping the information, the identifying information must be destroyed.

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An offence is committed if a person is responsible for identifying information and the person fails to destroy the information as soon as possible after the person is no longer required under the Archives Act 1983 to keep the identifying information. The penalty is imprisonment for two years or 120 penalty units or both (s45(1)).

Not an offence

The offence provision does not apply if the identifying information is a measurement of a person’s height and weight, a photograph or other image of a person’s face and shoulders and a person’s signature cannot be destroyed. This also includes any secondary information which has been taken indirectly from these types of identifiers.

Retention and storage of identifying information

The Act does not make provision for the indefinite retention of personal identifiers. The retention and disposal of identifying information is as required by the Archives Act 1938 and as provided for by the relevant Records Authority.

Records Authority

The department and the National Archives of Australia have developed a Records Authority to set out the requirements for keeping or destroying records for the core business area of Citizenship Management. Refer to Records Authority 2012/00542174.

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Chapter 15 - Bogus documents

Overview of bogus document provisions From 4 November 2014, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 inserted a definition of bogus documents into s3 of the Act and new provisions relating to bogus documents were inserted into Part 3, Division 1 of the Act, as s45A, s45B, s45C and s45D. All came into effect on 4 November 2014, and the s3 definition was amended from 18 April 2015.

The bogus document definition and provisions s45A to s45D, introduce a measure to retain documents presented or provided to the department that are bogus as defined in s3 of the Act. Such documents would be seized by the department and could be condemned as forfeited to the Commonwealth. The provisions provide for the forfeiture and seizure of bogus documents, specify notification requirements relating to seized documents, outline the rights of a person who has had their document seized and condemned as forfeited, and allow the Minister to give direction as to how a document condemned as forfeited to the Commonwealth should be dealt with or disposed of.

For the s3 definition of bogus documents, refer to Definitions.

Purpose of the provisions The department is presented with, or has presented to it, hundreds of documents on a daily basis. While the overwhelming majority of documents are legitimate, a small number are bogus. These provisions enable the department to remove bogus documents from circulation when they are discovered so that they will not remain available to the person to continue to use for potentially fraudulent purposes.

Section 45A to 45D of the Act enable effective border management and ensure integrity in the citizenship programme by accurately establishing and managing the identity of persons who enter, exist and reside in Australia.

The ability of the department to retain bogus documents from an individual is necessary as fraudulent documents may be used for criminal, including terrorist, purposes. Fraudulent documents including identity documents are recognised as enablers of criminal activity, including identity fraud.

Seizure of documents The seizure of bogus documents would take place during routine inspection of documents, which may be in a public place. In some of these instances, the retention of documents may occur in view of other members of the public. Seizure of bogus documents would only be done in accordance with the provisions in s45A to s45D and in line with any related instruments of delegation.

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Delegated powers The Minister’s powers in relation to the seizure of bogus documents (s45B) and dealing with a document after it is condemned as forfeited (s45D) must only be used by officers who have been appropriately delegated. Refer to the relevant instrument of delegation (DEL16/04 of February 2016).

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Chapter 16 - Application requirements and valid applications

Overview of chapter This chapter has been prepared taking into account requirements set out in the Act, the Regulations and the Acts Interpretations Act 1901 (the AI Act) and with reference to relevant case law based on decisions made by the Federal Court of Australia.

Refer to:

Application requirements under s46 of the Act

Section 46 requirements

Invalid applications.

Application requirements under s46 of the Act Section 46 of the Act prescribes the requirements for making an application under that Act, including:

being on the prescribed form – refer to On the relevant approved form and

containing the required information - refer to Information required by the form and

in accordance with regulation 12, that if information or a document accompanying an application is not in English, the information or document must be accompanied by an official English translation - refer to English translations and

in accordance with regulation 12A, the fee to accompany the application - refer to Application fees (s46(1)(d)).

The application requirements set out in s46 of the Act apply to all types of citizenship applications made under the Act. An application for Australian citizenship will be invalid if it does not satisfy the requirements set out in s46 of the Act.

An application that meets the requirements of s46 and is a valid application may not be a complete application. It is important to note that there is a difference between a valid application and a complete application. An application that is valid, that is, it complies with s46, but incomplete should not be returned to the applicant. Instead the applicant should be given a reasonable opportunity to provide the information required to complete the application.

For example, an application that complies with s46 that has not been signed by the applicant, would be considered to be an incomplete applications and should not be returned to the applicant. The applicant should be given a reasonable opportunity to complete their application - refer to Procedural fairness / natural justice.

Section 46 requirements Refer to:

On the relevant approved form

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Information required by the form (s46(1)(b))

Who may sign a citizenship application form

Additional information requirements to complete or support an application

Information / documents prescribed by the Regulations (s46(1)(c))

Application fees (s46(1)(d)).

On the relevant approved form

For a list of current acceptable prescribed forms for citizenship refer to department’s website.

Refer also to

When the latest version of the form is not used

Conferral application forms.

When the latest version of the form is not used

An application is not invalid simply because the latest version of the form has not been submitted. Instead, the applicant should provide any missing information or complete particular questions on the new form. This additional information should be attached to the form the applicant has previously submitted.

Conferral application forms

There are two forms which have been approved for the purposes of making an application for conferral of Australian citizenship under s21 of the Act. If an applicant appears to have applied on the alternative form it is open to an officer to find that the application meets the requirements of s46 if all other requirements are met.

If an officer believes that an applicant may have inadvertently completed the incorrect form for their circumstances the officer should contact the applicant as soon as practicable to discuss their intentions.

For example, if a person made an application and paid the appropriate fee for that form but it is apparent that the person should have applied using a different form because of their circumstances, the application may be accepted and processed under the appropriate provision (in this example, s21(4)) and part of the fee should be refunded under regulation 13 on the basis that the person has paid an incorrect fee.

If a person made an application for conferral without test (s21(3) to s21(8)) and paid the correct fee for that form, but did not nominated the provision they wanted to be assessed against, and it appears that they should have applied using the form for general eligibility conferral (s21(2), the application may still meet the application requirements set out in s46.

When appropriate, the applicant may choose to pay the additional test component of the fee within a stated period of time, in which case they may be taken to have made a valid application for the purposes of sitting the citizenship test once that additional component of the fee has been paid. In these circumstances the application date for the purposes of assessing whether a person meets certain eligibility requirements would be the date the additional fee was paid.

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Applicants should be alerted to any consequences which may occur if they delay paying the additional component of the application fee including the fact that they may not continue to meet certain eligibility requirements.

If the additional test component of the fee is not paid within the specified time the applicant will not be able to take a citizenship test because they have not made a valid application for the purposes of being assessed under the provisions set out in s21(2) of the Act. However, if the lodged application meets the s46 application requirements it must be assessed and a decision made in accordance with s24(1) unless the applicant chooses to withdraw their application in which case there may be no grounds to refund the application fee. Refer to regulation 13 for acceptable reasons to refund an application fee. Refer to Application fees (s46(1)(d)).

Information required by the form (s46(1)(b))

An application will satisfy this requirement if most of the information required by the form has been included, including the information and requirements on the form that are vital for the processing and consideration of the application, that is, enough information has been provided to substantially answer the questions on the form. This is known as ‘substantial compliance’.

Section 25C of the Acts Interpretation Act (the AI Act) which states that ‘where an Act prescribes a form, then the strict compliance with the form is not required and substantial compliance is sufficient’.

Refer also to:

Information and documents required for the Identity Declaration

Overseas penal certificates

Information and documents required for certain applicants.

Information and documents required for the Identity Declaration

Citizenship application forms require a completed Identity Declaration (including a correctly endorsed photograph) to be provided by the applicant.

Citizenship application forms, in the Identity Declaration section, require that applicants 18 years or over (in limited circumstances 16 years and over), provide certified copies of at least three documents that collectively contain the applicant’s:

photograph

signature

current residential address

birth name, date of birth and gender.

The application must also be made in the person’s current full name. If the applicant has changed their name since birth, the applicant must provide official evidence of the change of name. Refer to Chapter 13 - Identity.

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Overseas penal certificates

Applicants who have spent 12 months or more outside Australia and more than 90 days in any one country since becoming a permanent resident, need to provide overseas penal certificates from each country (other than Australia) in which they spent more than 90 days. Overseas penal certificates are not required for periods spent overseas under the age of 18 years when holding a permanent resident status. Refer to Overseas penal clearance.

Information and documents required for certain applicants

In addition to providing a correctly completed Identity Declaration, certain applicants are required to provide particular types of information and/or documentation to support their citizenship application.

Refer to:

Children aged under 16 years

British subjects who arrived before 1 January 1975

New Zealand citizens who do not hold a permanent visa

Applicants born to parent who ceased under s17 of the old Act

Applicants born in Papua

Conferral applicants seeking residence requirement discretion

Applicants claiming to have completed relevant defence service.

If these documents are not included with the application it should be returned to the applicant.

Children aged under 16 years

Applications made on behalf of, or including, a child under 16 years of age, should be supported by:

a correctly completed identity declaration including a correctly endorsed passport size photograph of the child

the child’s passport

the child’s full birth certificate, showing details of parents

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

any orders related to the custody or parental responsibility of the child

if the child was adopted overseas, or in Australia but did not acquire Australian citizenship as a result of that adoption, the original adoption order, recognition or verification of the overseas adoption order or confirmation that the adoption has taken place under Australian law must be provided and

official evidence of any name change.

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British subjects who arrived before 1 January 1975

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. Additional documentation should only be requested if required information is not already available to the department.

New Zealand citizens who do not hold a permanent visa

New Zealand citizens who are required to be a permanent resident to be approved for, or acquire Australian citizenship, who do not hold a permanent visa but instead hold a TY-444 (special category visa (SCV)) or special purpose visa as set out in the Minister’s Instrument under s5(2), may need to provide a certificate issued by Centrelink stating that they were residing in Australia on a particular date in order to establish if they can be considered to be a permanent resident for citizenship purposes. Refer to Chapter 18 - New Zealand citizens in Australia.

Applicants born to parent who ceased under s17 of the old Act

Applicants born to a former Australian citizen who ceased to be an Australian citizen under s17 of the old Act (who are applying to acquire Australian citizenship on the basis of s21(6) of the Act) may also need to provide (if the information is not already available to the department):

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

Applicants who are applying to acquire Australian citizenship on the basis of s21(7) who were born in Papua to a parent who was born in Australia as we now know it will also need to provide their parent’s birth certificate.

Conferral applicants seeking residence requirement discretion

Applicants seeking exercise of the residence requirement ministerial discretion under s22(5A) - confinement in prison or psychiatric institution will need to provide a statement giving reasons as to why it would be unreasonable not to take those periods into account. Refer to Ministerial discretion - Confinement in prison or psychiatric institution (s22(5A)).

Applicants seeking exercise of the residence requirement ministerial discretion under s22(6) - significant hardship or disadvantage will 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. Refer to Ministerial discretion - Significant hardship or disadvantage (s22(6)).

Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) - spouse, de facto partner or surviving spouse or de factor partner of an Australian citizen will need to provide:

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evidence of their spouse’s, or de facto partner’s, 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 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.

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 spouse’s, or de facto partner’s, death, if applicable and

evidence to demonstrate a close and continuing association with Australia during each period of absence.

Refer to Ministerial discretion - Spouses and de facto partners (s22(9) and s22(10)).

Applicants seeking exercise of the residence requirement ministerial discretion under s22(11) - interdependent relationship with an Australian citizen will also need to provide:

evidence of their interdependent partner’s Australian citizenship. For example, an 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

evidence that demonstrates that the applicant is still in that interdependent relationship.

Refer to Ministerial discretion - Interdependent relationships (s22(11)).

Applicants claiming to have completed relevant defence service

Applicants claiming that they have completed relevant defence service in accordance with s23 must also provide evidence which clearly outlines the service completed, or medical discharge papers if applicable.

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An applicant who meets the defence service requirement may provide an identity declaration made by a person who has not known the applicant for 12 months or more. Overseas Lateral Recruits are recruited by the Australian Defence Force (the ADF) to skilled and/or senior positions and the ADF requires them to obtain citizenship as soon as possible. This means the recruit may not have known any Australian citizen for the 12 months required under policy. They will, however, have gone through the ADF recruitment process and the visa process in the recent past and there is little risk associated with the declaration being made by someone who has known them for less than 12 months, particularly where the declarant is the recruit’s commanding officer, who likely occupies a position of trust and is familiar with the recruit’s background.

Who may sign a citizenship application form

It is preferable that application forms are signed at time of lodgement, however if a form has not been signed at time of lodgement the application should not be made invalid.

A person’s signature is considered to be a personal identifier - comparison of signatures should form part of the identity verification assessment.

The application should be signed before the application is finalised.

In some cases a person with power of attorney may sign an application form where the applicant has an incapacity which means that they are not able to sign for themselves. In these cases special care should be taken to establish the identity of the applicant.

16 and 17 years olds may sign their own application forms and do not require the signature of a responsible parent for the purposes of making their application. However, for conferral applicants aged 16 or 17 years, a responsible parent must sign the application form to provide consent for the department to provide the applicant’s personal information to the National Police Checking Service (NPCS) for the purposes of the NPCS conducting a National Police check in relation to the applicant as part of their application for the purposes of assessing whether an offence provision (s24(6) of the Act) applies to the applicant.

If an applicant is under 16 years of age, a responsible parent must sign the application form, refer to Chapter 21 - Responsible parent.

For information on who may sign an application form for a ward of the Minister or an unaccompanied Humanitarian minor refer to Chapter 7 - Citizenship by conferral.

Where a child is in the care of a State or Territory child protection agency but is not a Ward of the Minister, or an unaccompanied humanitarian minor, a child protection officer (not the foster parent) may sign the application form.

Additional information requirements to complete or support an application

All citizenship applicants should be encouraged to make a complete application. If a citizenship applicant has made their application in accordance with the requirements of s46 of the Act but the application is not complete the applicant should be provided with additional opportunities to provide the required information or documents and complete their application.

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As a general practice, a written request for additional information should be made which allows the applicant 35 days from the date of the written request in the form of a letter (28 days if the written request is by email or fax) to provide the required information. If the applicant is residing outside Australia they may be provided with 50 days from the date of the written request (28 days if the written request is by email or fax). Refer to Notifications and notification periods.

If the request for additional information is a simple request, for example, a request to refer to the original of a certified document already provided, a verbal request may be made and a record of the conversation recorded on the department’s system, stating the purpose of the request and the timeframes provided to the citizenship applicant for the provision of the information or documents.

Information / documents prescribed by the Regulations (s46(1)(c))

English translations

Under regulation 12, if information or a document accompanying a citizenship application is not originally in English it must be accompanied by an official English translation.

Under policy, translations provided for citizenship applications lodged in Australia should be completed by a translator who is accredited by the National Accreditation Authority of Translators and Interpreters (NAATI), a NAATI accredited translator. For overseas lodged applications the current guidelines for translations publicised by the relevant overseas post apply.

When applicants apply for citizenship in Australia they are expected to provide translations completed by a NAATI accredited translator so that citizenship decision makers in Australia can be assured of the qualifications of the translator and the reliability of the translated documents.

Where a decision maker has questions or doubts about the authenticity of a translation, translations completed by a NAATI accredited translator can also be more easily and quickly verified in Australia than translations completed elsewhere, providing a quicker processing time for affected applicants.

Application fees (s46(1)(d))

Refer to:

When a fee is payable

Repayment of an application fee

Refund of an application fee.

When a fee is payable

For:

Descent refer to Fees for descent applicants

Adopted children refer to Fees for s19C adoption applicants

Conferral refer to Fees for conferral applicants

Cessation refer to Fees to accompany applications (reg 12A)

Evidence refer to Fees to accompany application (reg 12A)

Resumption refer to Fees for resumption applicants.

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Repayment of an application fee

The department must not keep application fees to which it is not entitled. This includes application fees paid in relation to invalid citizenship applications on which a decision cannot be made.

Repayment of citizenship application fees are provided for under s77 of the Public Governance Performance and Accountability Act 2013, not the Act.

If an applicant’s citizenship application does not meet the requirements set out in s46 of the Act (that is, their application is invalid), arrangements must either be made to:

repay the application fee or

seek the applicant’s consent, in writing, to retain the application fee (and unlink it from the application) until such time as the applicant is able to make a valid application that meets the requirements of s46 of the Act.

If a citizenship application is identified as being invalid prior to processing an applicant’s credit card details, the application can be returned to the client without processing the credit card transaction.

If a citizenship application is deemed to be invalid the office that made this determination should arrange for a repayment to be made to the citizenship applicant. However, if the payment was made at an overseas Post in a foreign currency, the repayment should be processed by that Post and the repayment made in the same currency in which it was made.

Refund of an application fee

If a client is entitled to a refund, they must be refunded only the amount paid at the time of application and the amount specified by the Regulations in force at the time the fee was paid.

Refunds can only be approved if they are provided for under regulation 13, which sets out the circumstances in which the whole or part of a fee that is payable under s46 may be refunded. The circumstances in which a refund may be paid depend on the type of citizenship application that has been made.

A request for a refund should be made in writing by the citizenship applicant unless there are exceptional circumstances where it would not be appropriate to ask for the request to be made in writing. For example, the applicant is not literate in the English language and is unable to make such a request in writing.

The citizenship refunds form must be completed and signed by an officer delegated to approve a refund under regulation 13 prior to an assessment of the refund request being undertaken by a delegate.

For further information, including repayments and refunds for deceased persons, refer to the Accountable Authority Instructions, issued by the Secretary under the Public Governance, Performance and Accountability Act 2013.

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Invalid applications The Act does not refer to requirements for a ‘valid application’, nor does it expressly provide that the Minister is not to consider an application that is not a valid application. However, while the Act does not use the language of a ‘valid’ application, it does provide that an application under a provision of the Act ‘must’ meet the requirements set out in s46(1)(a) to s46(1)(d). The effect of Section 46(1) is to provide for the requirements of a valid application. Applications that meet these requirements under s46 should not be made invalid and should not be returned to the applicant.

For applications that are valid, but incomplete, the applicant should be given a reasonable time to overcome the deficiency, and should be advised that if the applicant does not provide the additional information within the timeframe they were given a decision will be made on the application based on the information available. If the additional information is not provided within the stated timeframe this may result in the application being refused.

As part of the assessment of the application it is up to the decision-maker to satisfy themselves of the identity claims. It is also open to the decision-maker to reasonably request further documentation if necessary to make a decision.

Note: If an applicant has made a valid citizenship application (that is, they meet the application requirements set out in s46 of the Act), the Act requires that a decision must be made on that application. An applicant’s citizenship application should only be returned to them if they do not meet the application requirements set out in s46 of the Act or they withdraw their application before a decision is made on it. Failure to meet an eligibility requirement that is set out in the Act (for example, the residence requirement) is not a reason to return their application to them as invalid.

If an application does not satisfy the s46 requirements it is not one that can be considered:

the application and any included documents must be returned to the applicant and

as the department is not considering the application the application fee must be repaid (not refunded) to the client (or person who paid the application fee). Refer to Repayment of an application fee.

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Chapter 17 - Decision making and review

Overview of chapter This chapter provides general guidance on citizenship decision making requirements, notifications, decision records and review rights.

Refer to:

Delegations

Application date

Powers and requirements

General principles of decision making

Notifications and notification periods

Nominated representatives

Decision records

Record keeping

Review of decisions and findings

Recording incidents of fraud in citizenship applications.

Delegations Section 53 of the Act provides that the Minister may, by writing, delegate all or any of the Minister’s functions or powers under the Act or the Regulations. Note: There are some powers that cannot be delegated, refer to s22A (1A), s22B(1A), s33AA, s34A, s35 and s35B.

The instrument of delegation made under s53 provides the power to make certain specified decisions under the Act. Not all decisions under the Act have been delegated.

Refer to the current citizenship instrument of delegations for details on the delegated decision making powers under the Act.

Application date For paper-based applications, the application date will not be the date the application form is received, but the date the applicant substantially meets the application requirements of s46 of the Act - that is, the date the applicant makes a valid citizenship application - refer to Procedural fairness / natural justice.

For e-lodged applications, if a citizenship applicant has not been able to attach the required documents to their e-lodged application due to a technical issue but presents the nominated documents at their appointment or within the specified timeframe if the client is not required to attend an interview, the application date should be taken as the date of e-lodgment.

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In relation to applications for citizenship by conferral where an applicant is required to sit a test, the Minister’s determination for the approval of a citizenship test made under s23A of the Act provides that an applicant cannot sit a test unless they have made a valid application - that is, an application which meets the requirements of s46 of the Act (refer to Chapter 16 - Application requirements and valid applications).

Powers and requirements There are a number of decision making obligations set out in the Act. For example, if a person makes an application to acquire or cease citizenship under the Act, the Minister (or the delegated decision maker if the power has been delegated - refer to Delegations) must approve or refuse the applicant in writing. Similarly, if a person makes an application to obtain evidence of Australian citizenship, the decision maker must make a finding in relation to the person’s citizenship status and decide whether evidence of citizenship will be given to the person.

Sections 17(1), 24(1), 30(1) and 33(2) of the Act require that where a person has made an application under s16, s21, s29, or s33(1) of the Act, the Minister must, by writing, approve or refuse the application. Before this may occur, an application must be made in accordance with the requirements of s46 of the Act (refer to Application requirements under s46 of the Act for further guidance).

Each Subdivision of the Act sets out the decision making obligations relating to that Subdivision.

Refer to:

Prohibitions to approval

Included applicants


When there is a decision bar.

Prohibitions to approval

The Act contains a number of provisions which provide that an applicant must be refused (or a finding or determination made in a certain way) if certain conditions are met, or not met, as specified by the relevant provision.

For citizenship applicants seeking to acquire or cease citizenship, the prohibition provisions would depend on the type of acquisition or cessation being sought. Refer to:

Descent - Prohibitions - Minister’s decision (s17)

s19C Adoption - Prohibitions - Minister’s decision (s19D)

conferral - Prohibitions - Minister’s decision (s24)

resuming - Prohibitions - Minister’s decision (s30)

renunciation by application - Decision making - renunciation by application (s33)

evidence - Must be satisfied of identity

Chapter 12 - National security

Chapter 13 - Identity.

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Included applicants

Children aged under 16 may apply on their own application form for conferral and to resume, or be included on the application form of a responsible parent (s46(2A)).

All applicants 16 and over must apply individually.

There are no dependent applicants under the citizenship laws. Each person included on an application form is an applicant in their own right. An individual decision to approve or refuse must be made regarding each applicant included on the application, based on consideration of all factors relating to that individual applicant’s application.


Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain circumstances. The Act does not allow for the deferral of decisions. However, it is possible instead to delay the making of the pledge of commitment (in relation only to conferral applicants who are required to make a pledge of commitment to become citizens) under s26(3) of the Act. Refer to Delayed making of pledge (s26(3) to s26(6)).

When there is a decision bar

There may be some cases that have a decision bar recorded against the applicant because of previous or ongoing action by another area of the department. In such situations, decision makers must seek approval from the relevant area for the decision bar to be lifted. Once a decision bar is lifted the case can be finalised.

If the decision bar is not lifted, decision makers should follow up with the relevant area on a monthly basis until the case can be finalised.

General principles of decision making A good decision is lawful, impartial, fair and reasonable:

be delegated to make the decision

ensure the application meets the application requirements set out in s46 of the Act - refer to Chapter 16 - Application requirements and valid applications

apply the law as it is set out in the Act and the Regulations

the law and policy that should be applied is that which was in effect at the time the application was made unless there are transitional provisions that state otherwise. For example, applications made prior to 1 July 2007 need to be considered against the provisions contained in the Transitionals Act

if it is a decision to cancel an approval or to defer the making of a pledge, the relevant legislation to be applied is that which is in effect at the time the decision is taken to cancel or defer

once a decision is recorded it cannot be undone - refer to Jurisdictional error

check the reliability of the information and evidence being considered

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applicants must be provided with procedural fairness in relation to any adverse information considered when making a decision. Refer to Procedural fairness / natural justice

apply fair, reasonable and unbiased decision making

take into account all relevant information, even if that information is provided after a set time but before a decision is made

apply discretions where appropriate

check for prohibitions on approval

where an application is refused, explain the reason(s) for the decision clearly, using language the client can understand - avoid departmental acronyms

correctly record the decision and the reason(s) for the decision.

Assessing the evidence

Evidence that is taken into consideration when making a decision needs to be relevant, credible and reliable. Decision makers must have sufficient evidence and information on which to base a decision to ensure a fully informed and lawful decision is made.

If all the evidence points in the same direction, that is, each piece of evidence is supported by other evidence or information, is credible, was issued over a period of time and is independently verifiable, it could be considered to be reliable. However, consider:

all the relevant information or evidence that is available. For example, check incoming mail for any late lodged documents from the applicant

how strong or weak the evidence is. For example, a statement from an applicant about their character which is not supported by any other evidence may not be considered to be strong. However, if the applicant’s statement is supported by statements from other trusted persons, criminal history checks or a report from a parole officer, then a decision maker might consider that the applicant’s statement has more weight

how convincing it is. For example, a birth certificate that has been amended in a way that does not appear to be official may not be very convincing in establishing a person’s identity

whether the evidence could be easily contrived. For example, a character reference may be easily contrived even though it is purportedly provided by a third party - check with the author of a reference by making a phone call, for example, to verify the information

whether the evidence or information looks strange or unusual. For example, whether an applicant has provided information about periods of time spent outside Australia which do not accord with information contained in departmental systems

whether there is any other supporting evidence. For example, does information contained in departmental systems or archive records support the claims made by the client and

whether the source of the evidence is credible. For example, consider whether documents issued by particular agencies or at particular times are known to be reliable.

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Procedural fairness / natural justice

The common law principle of procedural fairness (also known as natural justice) requires fair and proper procedures to be used when making a decision. A decision maker who follows a fair procedure is more likely to reach a fair and correct decision. Officers making a decision under the Act are expected to follow procedural fairness guidelines.

Refer to:

When procedural fairness should be given

What the procedural justice notice should include

Time period given for response

Information received after the set timeframe

Requests sent via email or fax

Requests for extensions of time

Requests that are returned to sender

Consideration of responses.

When procedural fairness should be given

It is generally accepted that where a decision maker has been delegated the power to do something which affects a person’s rights, interests or legitimate expectations, such as making a decision to refuse or approve a person becoming an Australian citizen, the decision maker will provide procedural fairness to that person.

A decision maker should afford procedural fairness to a citizenship applicant where the decision maker receives information that is adverse to an applicant, and that information is credible, relevant and significant to the decision to be made under the Act.

An applicant can expect that if a decision maker has adverse information about the applicant, the decision maker will provide that information to the applicant and give them a reasonable time in which to respond or provide comment.

Section 33AA(22) (renunciation by conduct) clarifies that the Minister is required to apply the rules of natural justice when exercising the discretion under subsection 33AA(14). However, the rules of natural justice do not apply to the Minister’s decision whether or not to consider exercising that discretion or any other decision under this section.

Section 35(17) (service outside Australia in armed forces of an enemy country or a declared terrorist organisation) provides that the rules of natural justice apply in relation to a decision by the Minister to make or not make a subsection 35(9) determination, but do not apply to any other decision of the Minister under this section, including a decision whether to consider exercising the power in that subsection to make a determination.

Section 35A(11) (conviction for terrorism offences and certain other offences), the rules of natural justice apply to the Minister’s powers subsection 35A(1) to make a determination, but not to other powers of the Minister under s35A.

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What the procedural justice notice should include

If a decision maker expects to reach an adverse conclusion based on material that is known to the applicant, the decision maker should invite comment from the applicant if that conclusion is not obvious or expected on the basis of the material (for example, if an applicant has disclosed a criminal history but believes that it will not affect their eligibility for citizenship, or where the department has found that the applicant had a period of unlawfulness which would impact the residence requirement).

There may, however, be circumstances where it would not be appropriate to disclose certain adverse information (or the source of that information) to an applicant, or where the disclosure of the information is not permitted.

These circumstances may include:

certain information from law enforcement agencies (note that National Police History Checks can be disclosed to the client)

information that has been received from a third party where the third party has not consented to the disclosure of the information, or was not reasonably likely to have been made aware that the information would be disclosed to the applicant.

Note: If an applicant is the holder of a permanent visa, or the holder of a special category visa or a special purpose visa, and the department receives from ASIO an adverse or qualified security assessment in respect of that applicant, the department is required by s38 of the ASIO Act to give the applicant a notice in writing, to which a copy of the assessment is attached, informing them of the making of the assessment and containing information in the prescribed form concerning the applicant’s right to apply to the AAT.

If an Interpol Red Notice (IRN) is received in respect of an applicant, a decision maker should put to the applicant a sufficiently edited form of information obtained from the IRN for comment, without disclosing the fact that the information came from the IRN. In other words, the decision maker should provide an indication of the substance of the material without stating its exact nature, or that it was obtained from Interpol.

Time period given for response

Neither the Act nor the Regulations set out periods by when a person is taken to have been notified of a decision or of a request for additional information or documents. Instead, the citizenship programme relies on s29 of the Acts Interpretation Act and s14A of the Electronic Transactions Act 1999 (the ET Act) for guidance on these matters.

A decision to approve or refuse should not be made until the time within which the applicant was requested to respond has passed.

Note: These guidelines are not to be applied to notification of decisions. This policy refers to timeframes within which clients may respond to departmental requests for information.

In Australia

For the purposes of requesting information or documents and providing procedural fairness to clients in Australia, it is departmental policy that such clients will be given:

if contacted by letter - 35 days from the date of the letter in which to respond or

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if contacted by email or fax - 28 days from the date of sending the email or fax in which to respond.

If a second request is required for the same information or documents then the client should be given:



Outside Australia

For the purposes of requesting information or documents and providing procedural fairness to clients outside Australia, it is departmental policy that such clients will be given:



If a second request is required for the same information or documents then the client should be given:



Information received after the set timeframe

Information received after the timeframe to provide information has passed, but received prior to a decision, is considered to be information before the department and should be taken into consideration when making a decision.

Requests sent via email or fax

Requests for information or documents, and opportunities to respond to procedural fairness letters, should only be sent to a client’s email address or fax number if the client has agreed on their application form that the department may communicate with them by these means.

Requests for extensions of time

Requests for extensions of time within which to provide information or documents are at the discretion of the case manager and should be considered where appropriate in order to provide a fair and reasonable outcome for the client.

Requests that are returned to sender

Any requests which are returned to the department as ‘return to sender’ must be attached to the file along with the envelope, and a note placed in the department’s system. In these circumstances, reasonable steps should be taken to determine the client’s current address by telephone or contacting a nominated representative.

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Consideration of responses

A decision should not be made until the time within which the applicant was requested to respond has passed.

The decision maker should give proper consideration to all relevant information provided, including any information received after the timeframe set for the response has passed but received prior to a decision.

Jurisdictional error

A jurisdictional error relates to a legal error being made during decision making. Whether a decision in respect of a citizenship application is affected by a clear jurisdictional error depends heavily on the facts of each case. Broadly speaking, jurisdictional error may include failing to provide natural justice, failing to take into account a relevant consideration, applying policy that is inconsistent with the legislation, or misinterpreting a statutory test (that is, misapplying the law).

Where a decision is affected by a clear jurisdictional error, the decision stands (that is, it is effective) but it may be ‘revisited’ (or, more correctly, made properly for the first time) as long as the affected individual consents to that course of action.

As a decision in respect of a citizenship application can only be revisited if it is affected by a clear jurisdictional error, such a decision should only be revisited after individual legal advice has been obtained.

Where a decision in respect of a citizenship application has been affected by a clear jurisdictional error, and approval to revisit the decision has been provided, consent must be sought from the applicant in writing to revisit the decision. This would usually only occur if the new decision was going to be more advantageous to the applicant (because an applicant would be unlikely to consent to a decision being revisited if it would be disadvantageous).

Note: Decision makers should be aware that altering a decision record on the department’s system amounts to the alteration of a Commonwealth record. Under s24(1) of the Archives Act, it is an offence to alter a Commonwealth record, unless one of the exceptions set out in s24(2) applies.

Notifications and notification periods Sections 17(1), 24(1), 30(1) and 33(2) of the Act require that where a person has made an application under s16, s21, s29, or s33(1) of the Act, the application must be approved or refused in writing. Before this may occur, the application must have been made in accordance with the requirements of s46 of the Act. Refer to Chapter 16 - Application requirements and valid applications for further guidance.

Refer to:

Notification of decisions

Decisions made under s35A

Notification of review rights

When notification is taken to have been received.

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Notification of decisions

Section 47 of the Act prescribes that, in relation to a decision under the Act:

the applicant must be notified (in writing)

if the applicant is a child, the notification requirement is satisfied if the notice of the decision is given to a parent of that child (s47(2)). As ‘child’ is not defined in the Act and a person aged 16 or 17 may sign the application form, the notification of decision should be sent to applicants aged 16 or 17 rather than to a parent of such applicants. The notice of decision for applicants aged 16 and under should be given to the parent of the child. For information on the definition of parent for citizenship purposes, refer to Chapter 20 - Parents and Parent-Child Relationship

if the decision is an adverse decision, the notice of the decision must include the reasons for the decision (s47(3). Refer to Decision records for information on preparing records of decisions

the notice of the decision must be given in the manner prescribed in the Regulations (s47(4). Regulation 14 provides that the notice of the decision must be given by:

personal delivery

prepaid post to the last address given to the department or

electronic means.

However, s47(5) provides that if a notice is made that does not comply with s47(3) (inclusion of the reasons for the adverse decision), or s47(4) (notice given in the manner prescribed by the Regulations), it does not affect the validity of the decision that was made in relation to the person.

Decisions made under s35A

The notification requirements in s47 do not apply to decisions made under s35A of the Act (cessation of citizenship on determination by Minister - conviction for terrorism offences and certain other offences). Section 47 is excluded from operation under s35A because s35A provides for its own stand-alone notice provisions which differ from s47 (refer to s35B).

Notification of review rights

Under the Administrative Appeals Tribunal Act 1976, the department is required to advise an applicant of their right of review to the AAT (if this is provided for in s52 of the Act), the time in which they have to apply for that review, and where they may apply for a review.

When notification is taken to have been received

Section 29(1) of the Acts Interpretation Act provides:

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Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Section 14A of the Electronic Transactions Act 1999 (the Electronic Transaction Act) provides:

For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:

(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee or

(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:

(i) the electronic communication has become capable of being retrieved by the addressee at that address and

(ii) the addressee has become aware that the electronic communication has been sent to that address.

Note: the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address

For the purposes of providing consistent policy guidelines, ‘ordinary course of post’ within Australia is based on a publication by Australia Post, ‘Letter products and services guide’, which sets out the expected delivery times after the date of posting, the longest of which is four business days. For notifications sent internationally, the international post guide at http://auspost.com.au/parcels-mail/delivery-times.html should be used to locate the time frame for the type of letter and country of destination, using the maximum of the expected delivery period.

If an applicant is to be notified of an adverse decision, the policy is that the notification should be sent by registered post, unless the applicant has given their consent to receive correspondence by electronic means.

If an applicant has agreed to communication via email or fax they are taken to have received the notification of a decision on the day the notice was sent to the correct email address or fax number.

Nominated representatives Any person, including registered migration agents, can provide assistance to a citizenship applicant in relation to an application for Australian citizenship.

Providing assistance to a person for the purposes of an application for citizenship is not ‘immigration assistance’ for the purposes of the Migration Act. The Act does not make restrictions on who may provide assistance to applicants.

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If an applicant for Australian citizenship has nominated a representative in relation to that application, the department should not request that the nominated representative complete Form 956 or a Form 956A, regardless of whether or not the nominated representative is a registered migration agent.

However, if an applicant provides the department with a Form 956 or a Form 956A nominating a third party to make enquiries on their behalf in relation to their citizenship application, it may be accepted that the nominated person has the authority to make those inquiries and that the department may provide information about the applicant’s citizenship application to the nominated person.

If a Form 956 or 956A has been completed and the client has indicated that they wish the nominated person to receive written correspondence, requests for information and notification of decisions should be addressed to the nominated person with copies to the applicant.

If an applicant has not nominated a representative on their citizenship application form but wishes to nominate a representative at a later date, they may nominate a representative by way of a written communication to the department. This should include the name and address of the nominated representative authorised by the applicant to make inquiries on the applicant’s behalf, and state the extent to which the representative has been authorised by the applicant to act on their behalf.

Information should not be provided to the nominated representative until the department has received the nomination of a representative to this effect from the applicant.

If an applicant has nominated a representative in their citizenship application form, this means that the applicant has authorised the department to provide information to the representative about the applicant’s citizenship application. It does not authorise the department to send the nominated representative requests for additional documents or information, or notifications of decisions, unless the applicant has specifically requested this.

An applicant can rescind their nomination of a representative at any time in writing to the department.

Decision records Section 47(3) of the Act provides that if a decision made under the Act is an adverse decision, the decision notice provided to the applicant must include the reasons for the decision. The Act does not set out what information must be included in the reasons for the decision. However, under s25D of the Acts Interpretation Act the statement of reasons for decisions shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

The decision record should contain:

the decision maker’s findings and assessment of the application against the legislative requirements and policy guidelines, including statements regarding:

information relied upon for the decision and how the information was weighted by the decision maker and

any information before the decision maker that was not taken into consideration and the reasons why it was not considered and

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statements regarding any procedural fairness processes that were undertaken

the decision maker’s decision, including:

a clearly stated decision and the reasons for the decision and

the date the decision was made and

the details of the decision maker who made the decision.

The signature block must include the:

decision maker’s first and/or family name and

decision maker’s position number and

decision maker’s position title and

the name of the department

Record keeping Accurate and up to date records regarding application processing, assessments/consideration, procedural fairness processes, decisions, notifications and decision records must be kept in the appropriate departmental record keeping systems.

Review of decisions and findings Refer to:

Review of decisions

Review of findings.

Review of decisions

Section 52 of the Act prescribes the types of decisions that may be reviewed by the AAT, and certain decisions that may not be considered by the AAT.

Section 52 provides that certain applicants for citizenship by conferral are not permitted to seek review by the AAT of certain decisions.

Refer also to:

descent - Review of decisions (s52) - descent

s19C adoption - Review of decisions (s52) - s19C adoption

conferral - Review of decisions (s52)

resuming - Review of decisions (s52)

renunciation by application - Review of decisions (s52).

Review of findings

Section 52 of the Act does not provide for a review of a finding of fact to be made through the AAT, however the applicant may request an administrative review of the finding by writing to the Secretary.

There is no fee for a request for an administrative review.

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Applicants who wish to request an administrative review of a decision made on an application for evidence of Australian citizenship can do by writing to:

The Secretary cc. Citizenship Operations Section Department of Immigration and Border Protection PO Box 25 Belconnen ACT 2616

The request must set out why the client believes the finding of fact was incorrect and be accompanied by any new information they wish to have taken into consideration during the review process.

Refer also to Internal review of a decision to refuse evidence.

Recording incidents of fraud in citizenship applications Section 50 of the Act provides that a person commits an offence if the person makes a false statement or representation in relation to a citizenship application or conceals information relevant to a citizenship application.

The department takes all attempts to commit fraud seriously. In some circumstances it may be appropriate to consider whether a client should be prosecuted in relation to citizenship related fraud (refer to Offences and prosecutions under the Act).

All officers have a responsibility to record any incidents of suspected fraud while processing citizenship applications. This enables the department to collect information about fraud and consider options for combating that fraud.

Fraud may include:

Fraudulent documents - these may be altered documents or counterfeit documents used to support an identity or an application, including requests for residence discretions

Identity fraud - this may include impostors or document fraud

Non-disclosure of criminal convictions or other activities of concern - this may include the signing of the Character declaration stating no criminal convictions where criminal history checks show otherwise

Fraudulent relationship claims for the purposes of citizenship by descent - this may include in some circumstances, claims to citizenship by descent through non-biological parents or adoptive parents

Non-compliance with the rules of conduct for taking a citizenship test.

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Chapter 18 - New Zealand citizens in Australia

Overview of New Zealand arrangements 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 other’s 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 present.

There are particular complexities regarding the situation of New Zealand citizens, and children born to New Zealand citizens, and the acquisition of, and eligibility for, Australian citizenship:

certain New Zealand citizens who do not hold a permanent visa under the Migration Act may be considered to be permanent residents for citizenship purposes under the legislative instrument made under s5(2) of the Act

children born in Australia to New Zealand citizen parents may or may not automatically acquire Australian citizenship at the time of their birth or on their 10th birthday depending on their circumstances and

different overseas penal clearance requirements are in place for New Zealand citizens who do not hold a permanent visa under the Migration Act who are applying for citizenship by conferral.

This chapter provides guidance on citizenship matters in relation to New Zealand citizens from 26 January 1973 to the present:

Status of New Zealand citizens in Australia

Permanent resident status of New Zealand citizens

Children born in Australia to New Zealand citizen parents

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

Status of New Zealand citizens in Australia Refer to:

26 January 1973 to 31 August 1994

1 September 1994 to 26 February 2001

Transitional provisions - Outside Australia on 26 February 2001

27 February 2001 to present

PR pathway for New Zealand citizens from 1 July 2017.

26 January 1973 to 31 August 1994

In summary:

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No entry permit required.

Considered as ‘exempt non-citizens’.

Considered a permanent resident for citizenship purposes only for periods present in Australia.

Between 26 January 1973 and 31 August 1994, a New Zealand citizen could enter Australia on presentation of their New Zealand passport. They were defined as an ‘exempt non-citizen’ for the purposes of the Migration Act. This meant that an entry permit was not required.

An ‘exempt non-citizen’ in Australia was also regarded as a permanent resident, for the purposes of an application for citizenship under the old Act. This was achieved through a declaration made under s5A(2) of the old Act which provided that certain non-citizens could be regarded as permanent residents for the purposes of that Act.

However, a child born in Australia during the period 20 August 1986 to 31 August 1994, to a New Zealand citizen who was considered to be an ‘exempt non-citizen’, is not an Australian citizen by birth. This is because despite being defined as ‘permanent residents’ for other purposes during this period, the citizenship by birth provisions of the old Act (s10(6)) specifically excluded from the definition of ‘permanent resident’ those people who were ‘exempt non citizens’ under the Migration Act.

The declaration under s5A(2) only extended to periods a New Zealand citizen spent in Australia. A New Zealand citizen was not considered an ‘exempt non-citizen’ while outside Australia.

In addition, a New Zealand citizen may not have been considered an exempt non-citizen for reasons related to matters of health and character, for example, if the person suffered from certain health conditions, had criminal convictions, presented bogus documentation when entering Australia or had been deported from Australia or another country.

1 September 1994 to 26 February 2001

In summary, if granted a:

Special category visa (SCV) - considered a permanent resident for citizenship purposes.

Special purpose visa (SPV) - considered a permanent resident for citizenship purposes only if the SPV was granted on the basis of the person’s status as airline crew member or airline positioning crew member and were ordinarily resident in Australia.

On 1 September 1994 amendments to the Migration Act required all non-citizens to hold visas. The SCV was introduced for New Zealand citizens.

A New Zealand citizen who was already present in Australia and did not hold any other visa automatically became a holder of an SCV from 1 September 1994. A New Zealand citizen who arrived in Australia on or after 1 September 1994, and presented to an immigration clearance officer a valid New Zealand passport and an incoming passenger card, was generally granted an SCV. The SCV is not a permanent visa. However, for the period from 1 September 1994 to 26 February 2001, New Zealand citizens who held a SCV were considered to be permanent residents for citizenship purposes unless:

the New Zealand citizen was present as a diplomatic representative (or their spouse or dependent child) of New Zealand and

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was the holder of a SPV (granted to certain diplomats, officials, crew or armed forces and their families).

This was achieved through a declaration under s5(A2) of the old Act.

The declaration under s5A(2) of the old Act was extended on 29 November 2004 to include certain New Zealand crew members as permanent residents for citizenship purposes if they:

were holders of SPV, granted on the basis of the person’s status as an airline crew member or an airline positioning crew member and

were ordinarily resident in Australia.

Transitional provisions - Outside Australia on 26 February 2001

If granted a SCV - considered a permanent resident for citizenship purposes only if they:

were in Australia as the holder of a SCV for a period or period totalling 12 months in the two years immediately prior to 26 February 2001 or

have a Centrelink certificate stating that they were residing in Australia on a particular date for the purposes of the Social Security Act.

Refer to 27 February 2001 to present.

27 February 2001 to present

In summary, if granted a:

Special category visa (SCV) - not a permanent resident for citizenship purposes unless covered by the transitional provisions (refer to Transitional provisions - Outside Australia on 26 February 2001).

Permanent visa under the Migration Act - considered a permanent resident for citizenship purposes.

Special purpose visa (SPV) - considered a permanent resident for citizenship purposes only if the SPV was granted on the basis of the person’s status as airline crew member or airline positioning crew member and were ordinarily resident in Australia.

On 26 February 2001 a revised social security arrangement was announced jointly by the Governments of Australia and New Zealand. On the same date, the Australian Government also announced that New Zealand citizens would no longer be considered as permanent residents for Australian citizenship purposes, unless:

they held a permanent visa granted under the Migration Act or

were in Australia on 26 February 2001 as holders of a SCV or

were outside Australia on 26 February 2001 but were in Australia as the holder of a SCV for one or more period totalling 12 months in the 2 years prior to 26 February 2001 or

did not fall within the above three categories but have a Centrelink certificate, issued under the Social Security Act 1991, that states that the person was, for the purposes of social security, residing in Australia on a particular date.

The declaration made under s5A(2) of the old Act continued to include certain New Zealand crew members as permanent residents for citizenship purposes if they:

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were holders of SPV, granted on the basis of the person’s status as an airline crew member or an airline positioning crew member and

were ordinarily resident in Australia (refer to Ordinarily resident).

For further information, refer to:

Permanent resident status of New Zealand citizens

Centrelink certificates

PR pathway for New Zealand citizens from 1 July 2017.

PR pathway for New Zealand citizens from 1 July 2017

Note: Coming into effect from 1 July 2017, a New Zealand citizen who first arrived after 27 February 2001 and before or on 19 February 2016 holding a SCV may have access to a skilled pathway to a permanent visa, provided the applicant has:

been lawfully resident in Australia for the five years prior to application

contributed to Australia as demonstrated through tax returns for the period of residence at or above the temporary skilled migration income threshold and

met mandatory health, character and security checks.

Limited exemptions to the income test requirement will be considered for particularly vulnerable New Zealand citizens. The mandatory residence criterion, including all other relevant criteria, will still need to be met before a visa could be granted. The Minister and the Minister for Social Services will determine who will be considered a vulnerable individual and how the exemptions to the income test will be assessed.

Only after the grant of this permanent visa will New Zealand citizens within the current SCV cohort who first arrived in Australia between 27 February 2001 and 19 February 2016 satisfy the permanent residence criteria to be eligible to acquire citizenship by conferral. The holder of this visa must also satisfy the remaining eligibility criteria for citizenship by conferral, including the residence requirement.

Permanent resident status of New Zealand citizens Section 5 of the Act sets out the requirements for a person to be considered as a permanent resident for the purposes of the Act. For further guidance on s5 and permanent resident status in general, refer to Permanent resident for citizenship.

A legislative instrument made under s5(2) of the Act, Australian Citizenship (Permanent Resident Status) (Subsection 5(2)) - available on LEGEND (or LEGENDcom - refer to www.border.gov.au/Trav/Visa/LEGE) and via the Federal Register of Legislation (www.legislation.gov.au), determines when certain New Zealand citizens can be considered to be permanent residents for the purposes of the Act.

Under the legislative instrument, New Zealand citizens are regarded as permanent residents of Australia for the purposes of the Act (for citizenship purposes) if they:

hold a permanent resident visa under the Migration Act or

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presented a valid New Zealand passport and a completed passenger card when they entered Australia (with some exceptions) and were in Australia on 26 February 2001 as the holder of a SCV or

were outside Australia on 26 February 2001, but were in Australia as the holder of a SCV for a period totalling not less than one year in the two years immediately before that date or

do not fall within the above two categories but have a Centrelink certificate, issued under the Social Security Act 1991, that states that they were, for the purposes of that Act, residing in Australia on a particular date.

Note: People eligible for a certificate under the Social Security Act 1991 (a ‘Centrelink certificate’) were New Zealand citizens who:

were existing recipients of social security payments who were outside Australia on 26 February 2001 but returned within 26 weeks of that date or

arrived to reside in Australia between 27 February 2001 and 25 May 2001 (inclusive) and had a Centrelink certificate certifying that they had, under the Social Security Act, established residence in Australia or

are part of a very small group who established permanent residence in Australia but were unable to be physically present in Australia in the three 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.

If a special category visa is granted to a permanent resident in error

A person who holds a permanent visa cannot make a valid application for a SCV (refer to Item 1219 of Schedule 1 of the Migration Regulations). This means that the grant of a SCV visa to a New Zealand citizen who holds a permanent visa is affected by jurisdictional error.

Generally, in order to set aside the grant of a visa affected by a jurisdictional error the department must have the consent of the visa holder. However, in the case of a SCV grant to a permanent visa holder consent can be implied as the application is invalid. The grant should be treated as a nullity, so as to reinstate the permanent visa which is in the client’s best interest.

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 February 2001) 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 or

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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 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 three months immediately following 26 February 2001 and who applied to Centrelink by 26 February 2002. For example, this group includes business people, church workers and aid workers who would have experienced hardship if they had to return by 26 May 2001.

Centrelink made assessments and issued certificates until 26 February 2004, for those who had commenced to reside in Australia within three months of 26 February 2001.

For those who were in Australia on 26 February 2001 but ‘temporarily absent’ and not on income support, assessments were made and certificates issued until 26 February 2002. Those on income support and temporarily absent were contacted by Centrelink and issued with certificates as appropriate.

Centrelink will issue (or reissue) certificates to people who were subject to assessments before the above dates. In some cases eligible people will not be aware that an assessment was undertaken by Centrelink or they are eligible to obtain a certificate from Centrelink.

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 for:

Person born 26 January 1949 to 19 August 1986

Person born 20 August 1986 to 31 August 1994

Person born 1 September 1994 to 26 February 2001

Person born 27 February 2001 to the present

Automatic acquisition of citizenship on 10th birthday.

For additional guidance on the provisions relating to citizenship by birth, citizenship on the 10th birthday and foreign diplomat parents, refer to Chapter 4 - Automatic acquisition of citizenship.

Person born 26 January 1949 to 19 August 1986

Most children born in Australia during this time were Australian citizens at birth.

A child who did not have a parent who was an Australian citizen or a permanent resident, who had a parent who:

was a diplomat or

was entitled to diplomatic privileges and immunities or

was a consular officer of a foreign country

may not have acquired Australian citizenship at birth. The laws regarding the diplomatic status of the parent changed over time. For further guidance refer to Historical provisions - Birth in Australia and Children born to foreign diplomats - citizenship by birth.

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In summary, most children born in Australia to New Zealand citizen parents from 26 January 1949 to 19 August 1986 became Australian citizens at birth (unless the parent was a diplomat).

A child born in Australia to New Zealand citizen parents from 26 January 1949 to 19 August 1986 may not have become an Australian citizen at birth if the parent was not an Australian citizen or permanent resident and was a diplomat, entitled to diplomatic privileges and immunities, or a consular officer of a foreign country.

Person born 20 August 1986 to 31 August 1994

Between 26 January 1973 and 31 August 1994 a New Zealand citizen was an exempt non-citizen if they last entered Australia by presenting a New Zealand passport as evidence of their New Zealand citizenship.

From 20 August 1986 to 31 August 1994 a child born in Australia to New Zealand citizens who were exempt non-citizens did not automatically acquire Australian citizenship. This is because s10(6) of the old Act specifically excluded citizenship by birth to a person born to an exempt non-citizen. These children may have acquired Australian citizenship automatically on their 10th birthday if they were ordinarily resident in Australia since their birth in Australia. Refer to Citizenship by birth on 10th birthday (s12(1)(b)).

In summary, a person born in Australia to New Zealand citizen parents from 20 August 1986 to 31 August 1994:

Is an Australian citizen:

at birth - only if the parent held a permanent visa granted under the Migration Act or

on their 10th birthday - only if the child was ordinarily resident in Australia since their birth in Australia.

Is not an Australian citizen

at birth - if the parent was an ‘exempt non-citizen’ or

on their 10th birthday - if the parent is a diplomatic representative of New Zealand, spouse or dependent of one, or holder of a SPV.

Person born 1 September 1994 to 26 February 2001

A child born in Australia to a New Zealand citizen parent was an Australian citizen at birth if at the time of birth the New Zealand citizen parent was a permanent resident as defined for the purposes of the old Act in force at that time. That is, the New Zealand parent was at the time of the birth the holder of a permanent visa or a SCV and was not:

a diplomatic representative of New Zealand (or a spouse or dependent child of one) or

the holder of a special purpose visa (granted to certain diplomats, officials, crew or armed forces and their families) unless the parent was the holder of a special purpose, that was granted on the basis of their status as an airline crew member or an airline positioning crew member; and they were ‘ordinarily resident’ in Australia.

For information regarding ordinarily resident refer to Ordinarily resident.

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In summary, a person born in Australia to New Zealand citizen parents from 1 September 1994 to 26 February 2001:


at birth - only if the parent held a special category visa or held a SPV on the basis of the parent’s status as airline crew member or airline positioning crew member and they were ordinarily resident in Australia or

on their 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 SPV.

Person born 27 February 2001 to the present

A child born in Australia to New Zealand citizen parents is an Australian citizen by birth only if the New Zealand citizen parent/s at the time of their child’s birth was a permanent resident for citizenship purposes because they:

held a permanent visa granted under the Migration Act or

were present in Australia on 26 February 2001 as the holder of a SCV or

were outside Australia on 26 February 2001 but had been in Australia as the holder of a SCV for a period totalling not less than one year in the two years immediately before that date or

did not fall within the above two categories but has a Centrelink certificate, issued under the Social Security Act 1991, that states that they were resident in Australia on a particular date for the purposes of that Act or

were the holder of a SPV granted on the basis of their status as an airline crew member or an airline positioning crew member, and they were ordinarily resident in Australia.

A child born in Australia to New Zealand citizen parents is not an Australian citizen by birth if the parent is:

the diplomatic representative of New Zealand (or the spouse or dependent child of one) or

the holder of a SPV (granted to certain diplomats, officials, crew, or armed forces and their families) unless the parent was the holder of a SPV that was granted on the basis of their status as an airline crew member or an airline positioning crew member and they were ordinarily resident in Australia.

For information regarding ordinarily resident refer to Ordinarily resident.

In summary, a person born in Australia to New Zealand citizen parents from 27 February 2001 to present:


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at birth - only if the parent holds a permanent visa granted under the Migration Act, or is a permanent resident for the purposes of the Act; or has a Centrelink certificate; or held a SPV on the basis of the parent’s status as airline crew member or airline positioning crew member and they were ordinarily resident in Australia or

on their 10th birthday -only if the child was ordinarily resident in Australia since their birth in Australia.


at birth - if the parent was outside Australia on 26 February 2001, and did not meet the transitional provisions or

on their 10th birthday - if the parent is a diplomatic representative of New Zealand, spouse or dependent of one, or holder of a SPV.

Automatic acquisition of citizenship on 10th birthday

A child born in Australia on or after 20 August 1986, who did not acquire Australian citizenship at birth, automatically acquires it on their 10th birthday if they have been ordinarily resident in Australia throughout the 10 year period beginning on the day of their birth. This provision operates regardless of the parent’s migration or citizenship status, unless the parent was a diplomat (refer to Children born to foreign diplomats - citizenship by birth).

Hence, a child born in Australia in 1986 and who did not acquire citizenship at birth, but was ordinarily resident in Australia would have automatically become an Australian citizen on their 10th birthday in 1996.

For further information on:

the interpretation of ordinarily resident, refer to Ordinarily resident

Automatic acquisition of citizenship on a child’s 10th birthday, refer to Citizenship by birth on 10th birthday (s12(1)(b)).

Character requirements for New Zealand citizens applying for citizenship by conferral Refer to New Zealand applicants for conferral.

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Chapter 19 - Papua, New Guinea, and Papua New Guinea

Overview of Papua, New Guinea, and Papua New Guinea 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, and making findings of fact about, people born in Papua prior to 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.

Prior to Independence

Papua prior to Independence

Papua was defined as part of Australia for the purposes of the old Act, but not for the purposes of the Migration Act.

As a result, people born in Papua acquired Australian citizenship at birth. However, people born in Papua of indigenous descent who wanted to travel to the Australian States and internal territories were required to apply under the Migration Act for permission to do so. Those of non-indigenous descent were not required to apply.

New Guinea prior to Independence

New Guinea was a Trust Territory and was not defined as part of Australia under either the old Act or the Migration Act.

People born in New Guinea who did not have the status of British subject or the citizenship of another country were Australian protected persons but were not Australian citizens by birth.

People born in New Guinea before 26 January 1949, who were British subjects immediately prior to 26 January 1949, acquired Australian citizenship automatically on 26 January 1949. Refer to Chapter 24 - Historical transitional provisions.

People born in New Guinea from 26 January 1949 could be registered as Australian citizens by descent if they had at least one parent who was an Australian citizen at the time of the birth. People born in New Guinea could also apply to be naturalised as Australian citizens.

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From Independence Day, 16 September 1975 From 16 September 1975, the former territories of Papua and New Guinea were no longer part of Australia.

Most Australian citizens of indigenous descent, and Australian protected persons, automatically became PNG citizens on 16 September 1975 and automatically lost their Australian citizenship, or Australian protected person status, under the PNG Independence (Australian Citizenship) Regulations 1975.

The PNG Independence (Australian Citizenship of Young Persons) Regulations 1980, provided that people who were under the age of 19 years on 16 September 1975, and who, if born in Papua, had a right of residence in Australia or, if born in New Guinea, had been granted Australian citizenship or registered as an Australian citizens by descent under the old 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 on 16 September 1975 who had at least two grandparents born in Papua New Guinea, and held a foreign citizenship or right of permanent residence on 16 September 1975, reacquired their Australian citizenship under the PNG Independence (Australian Citizenship of Young Persons) Regulations 1980.

People born in Papua who were 19 years or older on Independence Day, who had at least two grandparents born in Papua New Guinea, and 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.

A person born in Papua or New Guinea prior to 16 September 1975 automatically lost their Australian citizenship under PNG legislation (not the old Act), if they had at least two grandparents born in Papua New Guinea, and:

if born in Papua, had not acquired a right of permanent residence in mainland Australia or the citizenship of any other country or

if born in New Guinea:

did not have a right of permanent residence in mainland Australia or

had not acquired Australian or any other citizenship.

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.

References to grandparents born in Papua New Guinea, refer to grandparents who were born in Papua, New Guinea, the Solomon Islands, Iranian Jaya, or certain Torres Strait Islands.

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For further guidance on the cessation of citizenship:

under PNG Independence, refer to Cessation of citizenship under PNG legislation.

under the Act and old Act, that is for instances where citizenship was ceased under Australia’s citizenship legislation rather than as a consequence of PNG Independence, refer to Cessation of citizenship under the old Act and Chapter 9 - Cessation of Australian citizenship.

Citizenship by descent For guidance on citizenship by descent considerations for persons born in Papua, New Guinea, or Papua New Guinea, refer to People born in Papua before 16 September 1975, People born in New Guinea before 16 September 1975 and People born in PNG on or after 16 September 1975.

Citizenship by conferral For guidance on:

Australian citizenship by conferral under s21(6) (person born to a former Australian citizen), refer to Person born to former Australian citizen (s21(6)) - Person born in Papua New Guinea (PNG)

Australian citizenship by conferral under s21(7) (person born in Papua), refer to Person born in Papua (s21(7))

cessation of Australian citizenship under the PNG Independence legislation, refer to PNG Independence - 16 September 1975.

Cessation of citizenship under the old Act For guidance on whether a person born in Papua may have cease to be an Australian citizen under s17 of the old Act, refer to Section 17 - repealed on 4 April 2002 - People born in Papua or New Guinea prior to PNG Independence.

For guidance on cessation of citizenship under s18, or s23 of the old Act, refer to Historical cessation provisions.

Cessation of citizenship under PNG legislation Some people born in Papua or New Guinea prior to PNG Independence on 16 September 1975, lost their Australian citizenship under the PNG Independence legislation rather than the old Act. For guidance on cessation of Australian citizenship under the PNG Independence legislation, refer to PNG Independence - 16 September 1975.

Evidence of citizenship If a person born in Papua, New Guinea, or Papua New Guinea wishes to obtain evidence of their Australian citizenship, they will be required to apply for evidence of citizenship, refer to

Chapter 10 - Evidence of Australian citizenship

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People born in New Guinea before 16 September 1975.

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Chapter 20 - Parents and Parent-Child Relationships

Introduction to chapter ‘Parent’ is separate, though related, to ‘responsible parent’. For guidance on the definition of responsible parent and relevant considerations, refer to Chapter 21 - Responsible parent.

The term ‘parent’ is used in the Act and the Regulations in a number of provisions including:

s6 - responsible parent

s7 - death of a parent

s12 - citizenship by birth

s16 - citizenship by descent

s19A - not a citizen by descent despite approval

s21(6) - conferral (person born to former Australian citizen)

s21(7) - conferral (person born in Papua)

the national security prohibition provisions in s17(4B), s19D(7)(b), s24(4B), s30(6)

s47(2) - notification of decision on a child’s application.

Whether a person is a parent of a child is a finding of fact, with parent having its meaning in ordinary contemporary English usage.

The Full Federal Court [H v Minister for Immigration and Citizenship (2010) FCAFC 119; (2010) 188 FCR 393 (15 September 2010)] ruled that ‘parent’, when used in the Act, takes its meaning from ordinary contemporary English usage. Whether a person is a parent of another person is a question of fact, having regard to the evidence. Parent is not limited to a biological parent.

This chapter consolidates guidance relating to the determination of whether a claimed parent can be considered a parent for the purposes of the Act. It includes guidance on:

the definition of parent for the purposes of the Act, refer to Meaning of ‘parent’ for citizenship purposes

identifying fraudulently claimed parent-child relationships, refer to Parent-child relationship fraud

Biological parent-child relationships

determining who is the parent when there is no, or no evident, biological link between the parent and child, refer to Non-biological parent-child relationships

determining who is the parent when the child was born as a result of artificial conception procedures, refer to Artificial conception

determining who is the parent when the child was born as a result of a surrogacy arrangement, refer to Surrogacy.

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Meaning of ‘parent’ for citizenship purposes Until the decision of the Full Federal Court (FFC) in H v Minister for Immigration and Citizenship [2010] FCAFC 119 (‘H’)) on 15 September 2010, the department interpreted parent in the Act as a biological parent, unless there was a contrary intention in a specific provision. For example, adoptive relationships are provided for in s13 and Subdivision AA of the Act. In ‘H’, the FFC held that in the absence of a definition of parent in the Act, the meaning of parent in section 16 (concerning citizenship by descent) is not limited to biological parents. The FFC held that it is sufficient that, at the time of birth, an Australian citizen is a parent as that word is understood in ordinary usage. Therefore citizenship by descent, until then available under the Act to children of Australian citizen biological parents, can also be accessed by children of Australian citizen non-biological parents.

The decision of the FFC in relation to the meaning of the word parent in s16 also is applied to the word parent where it is used elsewhere in the Act.

Relevance of foreign law

The status of a person as a parent under a foreign law may be taken into account, but is not determinative as to whether that person is a parent for the purposes of the Act.

Parent-child relationship fraud An application requires additional scrutiny if one or more of the following circumstances apply:

the person stated to be the child’s mother travelled by air in what would have been a very advanced state of pregnancy (most airlines will not carry a passenger after the 28th week of pregnancy)

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

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

a person stated to be a parent is not contactable

the person stated to be the child’s 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 a significant time after the birth

the travel movements of the persons stated to be the parents indicate that they could not have been together at the time the child would have been conceived

a child notionally eligible for citizenship applied for a visa before seeking citizenship or evidence of citizenship.

There have been fraudulent attempts to register adopted children for citizenship by descent. (Adopted children are not eligible for citizenship by descent, refer to Chapter 5 - Citizenship by descent and Chapter 6 - 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.

If doubt exists about the Australian citizen parentage of a child, the bona fides should be checked.

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Biological parent-child relationships A decision maker may be satisfied that the parent-child relationship is biological after considering, as a whole, evidence concerning matters such as:

the nature of the relationship between the claimed parents

travel movements for the claimed parents around the date of conception

the applicant’s birth, registration of birth and the chain of custody post-birth

physical similarities between the applicant and claimed parent.

DNA testing

In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds that they are the biological child of:

an Australian citizen (for descent) or

an Australian citizen or permanent resident (for birth onshore)

and the decision maker is not satisfied that the person has such a biological relationship, the decision maker may suggest a DNA test.

DNA testing facilities and procedures (how tests are conducted and details of recommended laboratories) is available in PAM3: Div1.2/reg1.12 - Member of the family unit - DNA testing.

DNA evidence will be most useful in countries where there is a high incidence of document fraud or where official documentation is simply unavailable. It can also be useful where there is some doubt about the validity of the claimed relationships and/or credible documentation cannot be provided to substantiate claims. A DNA inclusiveness result of 99.5 or more may be taken as persuasive evidence of the biological relationship.

If the opportunity to provide DNA evidence in support of an application has been offered and not accepted, the decision maker should consider the applicant’s reason/s for not accepting the offer and whether any adverse inference may be drawn.

Decisions on applications should be made on the information available at the time. If the applicant declines to undertake a DNA test, or if the results of a DNA test do not support the applicant’s claims, the decision maker should assess the claimed parent-child relationship in the light of any other relevant factors.

Non-biological parent-child relationships The citizenship applicant may have a non-biological parent-child relationship with their claimed parent. In other cases, although a biological parent-child relationship was claimed, there may be insufficient evidence to support the claim of biological parentage.

These cases may occur for a variety of reasons, such as:

the applicant was born through a surrogacy arrangement that did not involve the contribution of genetic material by either commissioning parent

the applicant and their parent held a genuine but mistaken belief that they were biologically parent and child

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the applicant acknowledges that there is no biological link to their claimed parent but contends that they nevertheless had a parent-child relationship at the relevant time (generally as of the date of the applicant’s birth).

Factors to be taken into account

For citizenship by birth (s12), the parent-child relationship between the Australian citizen or permanent resident and the applicant must have existed at the applicant’s time of birth. Similarly, for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time of birth. The applicant (or, if applicable, their responsible parent) should be asked to provide evidence of the length and nature of the Australian citizen’s or permanent resident’s parental relationship with the child.

Note: Evidence of the length and nature of the relationship between the claimed parents may corroborate the evidence of the relationship between the applicant and the Australian citizen parent, but is not in itself evidence of the parent-child relationship.

It is unlikely that any one piece of non-biological evidence would be sufficient to prove the required parent-child relationship. The decision maker more likely will be required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent is (was) or is (was) not a parent of the applicant at the relevant time.

Evidence that the claimed parent-child relationship existed at the time of the applicant’s birth may include, but is not limited to:

anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their prior consent

evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth and prenatal and postnatal care

evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child and

when a child is born through a surrogacy arrangement - a formal surrogacy agreement entered into before the child was conceived and lawful transfer of parentage before or at time of birth in the country in which the surrogacy was carried out.

Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they were the child’s parent at time of birth, but would lend weight to evidence of the types already mentioned.

In the absence of satisfactory evidence of biological parentage, any other evidence provided should be closely scrutinised and verified to the maximum practical extent.

Artificial conception Artificial conception procedures include artificial insemination or the implantation of an embryo in the body of a woman. An alternative term is assisted reproduction.

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Section 8 of the Act relates to children born as a result of artificial conceptions procedures and certain surrogacy arrangements.

Artificial conception procedures - legislative framework

Artificial conception procedures are regulated in Australia by the States and Territories.

The Family Law Act provides for recognition under family law of certain parent-child relationships created through artificial conception procedures. The Family Law Act in turn refers to the following prescribed state and territory laws:

Status of Children Act 1996 (NSW)

Status of Children Act 1974 (Vic)

Status of Children Act 1978 (Qld)

Artificial Conception Act 1985 (WA)

Family Relationships Act 1975 (SA)

Status of Children Act 1974 (Tas)

Parentage Act 2004 (ACT)

Status of Children Act 1978 (NT).

Application of s8 of the Act

For citizenship purposes s8 of the Act applies equally, but has a different effect, in respect of artificial conception procedures compared with surrogacy arrangements.

Artificial conception procedures (not surrogacy)

Section 8 has the effect of limiting who may be considered a parent when a person is a child of another person under s60H of the Family Law Act 1975 (FLA). Section 8 of the Act provides that if:

a person is a child of a person under s60H of the FLA and

a child of that person’s partner under s60H or the biological child of that person’s partner

the child is taken to be the child of that married or de facto couple and of no one else.

Section 8 applies to children born through artificial conception procedures in Australia or overseas.

For a child covered by s8 of the Act, the immigration or Australian citizenship status of the sperm or egg donor does not affect the child’s eligibility for Australian citizenship. Rather it is the immigration or Australian citizenship status of the persons who are recognised as the parent/s of the child under the Family Law Act that determines whether the child is eligible for Australian citizenship.

If the child is born in Australia they will automatically acquire Australian citizenship at birth under s12 of the Act if one (or both) of the persons recognised as their parent is an Australian citizen or permanent resident at the time of the child’s birth.

If the child is born overseas and one (or both) of the persons recognised as a parent of the child is an Australian citizen at the time of the child’s birth, the child may be eligible for Australian citizenship by descent under s16 of the Act.

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Surrogacy Surrogacy is an arrangement, usually contractual, under which a woman (the ‘gestational’ or birth mother) agrees to bear a child for another person or persons (the ‘commissioning parent/s’) with the intention that the child be handed over to those persons immediately or very soon after the birth. The persons involved may or may not be genetically related to the child.

The involvement of the department in international commercial surrogacy arrangements (international surrogacy) is limited to determining Australian citizenship by descent applications and less commonly, visa applications, made by persons born through surrogacy arrangements.

The Act applies universally to the children of an Australian parent no matter how the child came to be conceived. The overall intent of the requirements for Australian citizenship by descent is deliberately simple, that is, the child must have had a parent who is an Australian citizen at the time of the child’s birth and the citizenship decision-maker must be satisfied of the child’s identity. However, assessing these requirements in practice, particularly in an international surrogacy context, can be complicated.

As a party to the United Nations Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, Australia is committed to protecting the fundamental rights of children. These Conventions include obligations to prevent the abduction, sale, or trafficking of children. While Australia does not have obligations towards children who are not within its jurisdiction, caution should be exercised when deciding cases involving surrogacy arrangements entered into overseas to ensure that Australia's citizenship provisions are not used to circumvent adoption laws and other child welfare laws.

Refer to Surrogacy and Australian legislation.

Surrogacy and Australian legislation

All States and Territories (except the Northern Territory) have legislation dealing with surrogacy. Altruistic surrogacy is lawful in each of these jurisdictions. Each jurisdiction also provides a mechanism to transfer parentage to the intended parents of a child, where that child has been born as a result of domestic altruistic surrogacy arrangements. The specific requirements for persons entering into altruistic surrogacy arrangements vary across states and territories.

All jurisdictions (except the Northern Territory) have prohibited commercial surrogacy.

The Australian Capital Territory, New South Wales and Queensland have prohibited residents of those jurisdictions from entering into commercial surrogacy arrangements in foreign jurisdictions. While these Australian laws make it illegal to enter into international surrogacy arrangements, the offence of entering into a commercial surrogacy does not prevent the relationship between the commissioning parents and the child being recognised for the purpose of the Act. Whether or not there is unlawful activity relating to a surrogacy arrangement is not a consideration a citizenship decision-maker may take into account.

The Family Law Act provides for recognition under family law of certain parent-child relationships created through a surrogacy arrangement. The Family Law Act in turn refers to the following prescribed state and territory laws:

Surrogacy Act 2010 (QLD)

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Surrogacy Act 2008 (WA)

Parentage Act 2004 (ACT)

Family Relationships Act 1975 (SA)

Surrogacy Act 2010 (NSW)

Status of Children Act 1974 (VIC).

Section 8 of the Act has the effect of limiting who may be considered a parent when a person is a child of another person under s60HB of the Family Law Act. Section 8 of the Act provides that if:

a person is a child of a person under s60HB of the FLA and

a child of that person’s partner under s60HB or the biological child of that person’s partner

the child is taken to be the child of that married or de facto couple and of no one else.

The requirements of section 8 of the Act cannot be met, or are extremely unlikely to be met, by an international surrogacy arrangement. Whether the requirements of section 8 of the Act can be met in the circumstances of an international surrogacy arrangement will depend on whether the prescribed State and Territory laws enable a court to make an order that a child is the child of one or more persons where the child was born overseas.

Generally, the State and Territory Acts either expressly do not apply to overseas surrogacy arrangements, or include such onerous requirements around counselling and other aspects of the surrogacy agreement that it is extremely unlikely that they would be met by a commercial overseas surrogacy arrangement

Where there is a surrogacy arrangement and section 8 requirements are not met to provide certainty as to who the parents are, then the decision maker must determine who the parent of a child is by interpreting the term ‘parent’ as set out by the courts in H v Minister for Immigration and Citizenship [2010] FCAFC 119.

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Chapter 21 - Responsible parent

Responsible parent overview Responsible parent is defined in s6 of the Act. A person may be a responsible parent under one of more paragraphs of s6(1).

The underlying policy intention is that a person with lawful responsibility for a child, whether or not they are a parent of the child, may act on behalf of that child for some purposes of the Act.

The term responsible parent is used in the Act and the Regulations in a number of provisions, including:

s25(4) - cancellation of child’s approval

s28 - day citizenship by conferral begins

s29(2) - eligibility to resume (in relation to s36 cessation)

s36 - children of responsible parent who ceases to be an Australian citizens

s46(2A) - ways a child aged under 16 years may apply, and

items 14B and 16, Schedule 3 of the Regulations - fee for child under 16 who applies on a responsible parent’s conferral or resumption application form, and

in addition, application forms of applicants aged under 16 years should be signed by a person who is a responsible parent of the child. Refer to Who may sign a citizenship application form.

Section 6 of the Act was amended on 3 July 2008 (with retrospective effect from 1 July 2007), changing terminology to remove references to ‘residence order’ and ‘specific issues order’ and referring simply to ‘parenting order’. The changes are a consequence of amendments to the Family Law Act, which aim to focus the court and the parties on parenting as the central issue.

A parenting order is made by the court and can cover the allocation of parental responsibility, living arrangements, contact and communication, maintenance, and any aspect of care, welfare or development of the child. The best interests of a child come first when a court is making a parenting order.

Who is a ‘responsible parent’

The person is a parent of the child

For the purposes of s6(1)(a), parent has its common meaning and is not limited to a biological parent - refer to Meaning of ‘parent’ for citizenship purposes.

A parent is not a responsible parent if, because of orders made under the Family Law Act (the FLA), they no longer have any parental responsibility for the child. Parental responsibility has the same meaning as in Part VII of the Family Law Act - all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

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Note: Western Australia has not referred its family law powers to the Commonwealth. An order removing parental responsibility made under Western Australian legislation does not cause a parent to cease to be a responsible parent for the purposes of the Act.

Parenting order - child is to live with the person

‘Parenting order’ has the same meaning as in the FLA. A parenting order may deal with one or more of the following:

the person or persons with whom a child is to live

the time a child is to spend with another person or other persons

the allocation of parental responsibility for a child

if two or more persons are to share parental responsibility for a child−the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility

the communication a child is to have with another person or other persons

maintenance of a child

the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

a child to whom the order relates or

the parties to the proceedings in which the order is made

the process to be used for resolving disputes about the terms or operation of the order

any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

A person does not need to be a parent in order to meet the requirements of s6(1)(b).

A parenting order that requires the child lives with a person is sufficient evidence that person is a responsible parent.

Parenting order - parental responsibility for the child

Under a parenting order the person has parental responsibility for the child’s long-term or day-to-day care, welfare and development.

A person does not need to be a parent in order to meet the requirements of s6(1)(c).

A parenting order that gives a person parental responsibility for a child’s long-term or day-to-day care, welfare and development is sufficient evidence that the person is are a responsible parent. It is not necessary for the child to be living with the person.

Guardianship or custody of the child under law

The person has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.

Section 6(1)(d) provides for a person to be considered a responsible parent if they have guardianship or custody of a child. The person claiming to be a responsible parent must have guardianship or custody of the child under an Australian or foreign law.

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As neither guardianship nor custody are defined in the Act or Acts Interpretation Act, they take their common or dictionary meaning.

Guardianship is defined in the Macquarie Dictionary as ‘someone who guards, protects or preserves’ or ‘someone who is entrusted by law with the care of the person or property, or both, of another, as of a minor or of some other person legally incapable of managing their own affairs’.

Custody is defined as ‘keeping; guardianship; care’, or ‘legal guardianship of a child’.

Application requirements - responsible parent’s consent Refer to:


Applicants aged 16 and 17

Children born through an international surrogacy arrangement.


An application by a minor under 16 requires the consent of a responsible parent. The consent of all responsible parents is not necessary.

Applicants aged 16 and 17

An application by a minor aged 16 or 17 does not ordinarily require the consent of a responsible parent. An exception would be when there is reason to believe that the minor does not have lawful capacity to act for themselves.

Children born through an international surrogacy arrangement

As the legal status of surrogacy arrangements differs from country to country, and sometimes, between different jurisdictions within a country, each surrogacy arrangement needs to be looked at carefully in the context of the local laws in force where and when the child was born.

To satisfy application requirements, one of the following will usually be required:

the commissioning parent can be asked to provide a court order or other evidence from the country where the child was born, indicating that the commissioning parent who is signing the citizenship application form has parental responsibility for the child (as required under s6 of the Act) or

if the commissioning parent does not have parental responsibility for the child, the surrogate gestational mother (or another person with parental responsibility) would need to make the application on behalf of the child. Consideration should be given to interviewing the surrogate gestational mother (or other person with parental responsibility) to ensure that they have genuinely and voluntarily given their consent to the application being made.

For further information regarding surrogacy, refer to Surrogacy.

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Disputes between responsible parents Refer to:

Application validity

Withdrawal of application

Notification requirements.

Application validity

If the department becomes aware that one responsible parent objects to an unfinalised citizenship application that was made on behalf of a child by another responsible parent, the objecting responsible parent should be asked to provide evidence (by way of a court order) demonstrating that the responsible parent who lodged the application did so without authority. If the evidence is not provided, the application should continue to be processed. If evidence is provided that the responsible parent in question did not have authority to unilaterally make the application on behalf of the child, then the application should be regarded as not having been validly made.

Withdrawal of application

An applicant is able to withdraw their application for citizenship before a decision is made in relation to the application. If a responsible parent attempts to withdraw an application that was validly made on behalf of a child by another responsible parent, the responsible parent attempting to withdraw the application should be asked to provide evidence demonstrating that they have the authority to do so (for example, a court order made after the application was lodged that gives the responsible parent sole authority to act on behalf of the child in such matters).

Notification requirements

While a responsible parent may sign an application on behalf of a child, notification of a decision under s47(2) may only be given to a parent. Depending on the particular facts, a person who is a responsible parent under s6(1)(b), (c) or (d) may also be considered a parent under the common meaning of that term - refer to Chapter 20 - Parents and Parent-Child Relationship.

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Chapter 22 - Best interests of the child

Overview of chapter This chapter provides guidance on when and how to consider the best interests of a child.

Refer to:

The status of international conventions in Australian law

The Convention on the Rights of the Child.

The status of international conventions in Australian law

The power to approve or refuse citizenship in accordance with the Act is a fundamental exercise of Australian sovereignty.

Any obligations Australia has under international conventions have no domestic legal force in Australia unless they are incorporated into, or may be considered under, an Australian law.

The Convention on the Rights of the Child

Australia is a signatory to the Convention on the Rights of the Child (CROC). Article 3 of the CROC states:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Australia’s obligations under the CROC only apply to children (that is, persons under the age of 18) within Australia’s territory or jurisdiction.

When to assess the best interests of the child As Article 3 is worded ‘all actions concerning children’, officers should assess the best interests of a child in relation to:

decisions under the Act directly relating to the child and

decisions under the Act about a family member, primary care giver or other person who has claimed responsibility for the child, even if the decision does not directly relate to the child. This is because a decision about a parent or primary care giver may affect the child. The child concerned may be a non-citizen or an Australian citizen child of a non-citizen parent.

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When exercising a power that does not specifically address the best interests of the child and which does not allow the decision maker any discretion, there is generally no scope to consider the best interests of the child. For example, s16 of the Act requires that an applicant for citizenship by descent had an Australian citizen parent at the time of the applicant’s birth. If that requirement is not met then the decision maker is required under s17 to refuse to approve citizenship for the applicant, without considering the best interests of the child. However, wherever possible, decision makers should consider the best interests of the child when making a decision.

A child’s best interests must be considered when exercising a discretionary power under these provisions of the Act:

s19D(3) - refusal of an application for citizenship by a child adopted in accordance with the Hague Convention on Inter-country Adoption or bilateral arrangement

s19D(7A) - discretion to not apply s19D(6)(a)(ii) (convicted of certain offences)

s22(4A) and 22(5) - ministerial discretion - administrative error

s22(5A) - ministerial discretion - confinement in prison or psychiatric institution

s22(6) - ministerial discretion - person in Australia would suffer significant hardship or disadvantage

s22(9) - ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

s22(11) - ministerial discretion - person in an interdependent relationship

s22A(3) - confinement in prison or psychiatric institution

s22A(4) and (5) - ministerial discretion - administrative error

s22B(3) - confinement in prison or psychiatric institution

s22B(4) and (5) - ministerial discretion - administrative error

s24(2) - refusal of an application for citizenship by conferral

s24(4C) - discretion to not apply s24(4A)(a)(ii) (convicted of certain offences)

s25 - minister may cancel approval

s26(3) - determination that a person cannot make a pledge

s26(5) - revocation of determination that a person cannot make a pledge

s30(2) - refusal to approve a person becoming a citizen again

s30(7) - discretion to not apply s30(5)(a)(ii) (convicted of certain offences)

s33(5) - minister may refuse to approve the person renouncing his or her citizenship

s34 - revocation of citizenship

s36 - minister may revoke the citizenship of the child of a responsible parent who ceased to be a citizen

s37 - evidence and cancellation of evidence of citizenship

s38 - minister may request a person surrenders an evidentiary notice

s40 - request for personal identifiers.

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What are the best interests of the child

Definition of best interest of the child

The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the CROC. The factors that are most likely to be relevant to citizenship decisions are:

children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse

families should be able to stay together, as far as possible

the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child

the child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law

prevention of the illicit transfer and non-return of children abroad

freedom of religion

the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding and

the degree of the child’s integration into the Australian community.

Those factors raised by the applicant or a third party, or evident on the available material, must be considered. Decision makers are not required to request further material for consideration regarding the rights of a child.

Although the CROC provides that minors are entitled to access public education, public health services and social welfare, and to not be subject to economic exploitation, these generally will not be an issue when deciding citizenship applications. This is because:

there is no discretionary power to refuse citizenship applications under Division 2, Subdivisions A (Descent) and AA (Hague Convention or bilateral arrangement adoption) and

most applicants under Division 2 Subdivision B (Conferral) are permanent residents, who have appropriate access to education, health and social welfare services, and when in Australia are covered by the same labour laws as Australian citizens.

Weighing the best interests of the child against other matters

Article 3 requires that the best interests of the child be a primary consideration in all actions concerning children. Article 3 does not require that the best interests of the child be the only primary consideration. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include, but are not limited to:

the objectives of the relevant provision/s in the Act

community protection and

community expectations.

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This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under s34 but, depending on the particular facts and after taking into account the other primary considerations, the decision maker may conclude that revocation of the person’s citizenship is the decision that should be made.

Recording the assessment The assessment of the best interests of the child should be included in the decision record.

Further information For the full text of the Convention on the Rights of the Child, refer to www.austlii.edu.au/au/other/dfat/treaties/1991/4.html

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Chapter 23 - British subjects

Overview to chapter Before the old Act came into force on 26 January 1949 the status of Australian citizenship did not exist. People born or naturalised in Australia acquired the status of British subject of Australia.

When the old Act came into effect on 26 January 1949 it provided for the automatic acquisition of Australian citizenship for some, but not all, persons who held British subject status, through a range of transitional provisions (refer to Chapter 24 - Historical transitional provisions).


British subject status prior to 26 January 1949

British subject status from 26 January 1949

Marriage and women’s status as British subjects

Burma

Ireland

South Africa and Pakistan.

British subject status prior to 26 January 1949 Refer to:

British subject through birth or descent

British subject by naturalisation

British subject by marriage

British subject by annexation of a territory

Loss of British subject status.

British subject through birth or descent

People generally acquired British subject status at birth if they were born within Great Britain’s dominions unless:

their father was, at the time of the birth, the diplomatic representative of a foreign power or

they were born of an alien enemy father in occupied British territory.

A person born on board a foreign ship was not deemed a British subject by reason only that the ship was in British territorial waters at the time of birth, unless they were born:

legitimately outside Great Britain’s dominions and their father was a British subject by reason of birth on British soil

outside Great Britain’s dominions before 1 January 1915 and their paternal grandfather was a British subject by reason of birth on British soil

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outside Great Britain’s dominions and their father, prior to the birth, had been granted a Certificate of Naturalisation of the type set out British subject by naturalisation

outside Great Britain’s dominions after 1 January 1915, of a father who was a British subject by descent only, and the birth was registered at a British consulate.

British subject by naturalisation

People were deemed to have acquired British subject status by naturalisation if they held or were included in a Certificate of Naturalisation granted by the:

Government of an Australian State before 1 January 1904

Government of the Commonwealth between 1 January 1904 and 31 March 1937, (after 1 January 1921 details of the person’s wife were shown on the certificate if she was included in the application)

Home Secretary of the United Kingdom after 1 January 1915 or

Governments of the following Dominions, after the dates shown

Canada - after 1 January 1915

Newfoundland - after 5 June 1915

South Africa - after 21 May 1926

New Zealand - after 1 July 1929.

Refer also to:

Naturalisation - Children

Foreign born wives.

Naturalisation - Children

Children of people granted Certificates of Naturalisation under various Commonwealth and State Acts in force before 1 January 1921 became naturalised in certain circumstances without having their names included in a parent’s certificate.

Foreign born wives

In relation to foreign-born wives of people naturalised in Australia subsequent to the marriage:

if the husband was naturalised in Australia between 1 January 1921 and 31 March 1937, the wife automatically acquired British subject status without any action on her part

if the husband was naturalised between 1 April 1937 and 25 January 1949, the wife did not acquire British subject status unless she made a Declaration of Acquisition of British subject status under s18(5) of the Nationality Act 1920-1946

if the husband was naturalised before 1 January 1921 the wife may or may not have acquired British subject status.

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British subject by 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 woman’s nationality.

British subject by annexation of a territory

British subject status could be acquired by inhabitants of a territory annexed by the British Government.

Loss of British subject status

British subject status could be lost in any one of these ways:

by naturalisation in a foreign state, if the person concerned was sane, of full age, and was not a married woman

by declaration of alienage which could be made only in specified cases and were very few in number

in the case of persons who had obtained British subject status by naturalisation, 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 old Act provided for the restoration of British subject status to women who lost that status solely by reason of their marriage.

British subject status from 26 January 1949 Between 26 January 1949 and 1 May 1987, citizens of Australia were also British subjects for the purposes of Australian law. This was in keeping with the principles agreed to in 1947 for the adoption of a scheme of legislation combining citizenship of independent member countries of the Commonwealth with the maintenance of the common status of British subject throughout the Commonwealth.

For the purposes of Australian law, a person was a British subject if she or he was an Australian citizen, or a citizen of one of the countries listed in s7 of the old Act or in regulations made under that provision.

Today, the most important implication of British subject status relates to whether a person obtained citizenship automatically on 26 January 1949 under the transitional arrangements. The countries included in s7 on that date were:

United Kingdom and Colonies

Canada

New Zealand

The Union of South Africa

Newfoundland

India

Pakistan

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Southern Rhodesia and

Ceylon (currently Sri Lanka).

A person, who was a British subject immediately before 26 January 1949 and who did not on that date acquire Australian citizenship or hold the citizenship of another Commonwealth country or Ireland, became a British subject without citizenship.

Marriage and women’s status as British subjects A woman who was an Australian citizen and who married a citizen of another country after the commencement of the Act (26 January 1949) did not lose her Australian citizenship by reason only of marriage, whatever her husband’s nationality and wherever the marriage took place. This was the case even if a result of the marriage was the automatic conferral of her husband’s citizenship.

The transitional provisions of the old Act provided that a woman who lost British nationality by marriage before the commencement of the Act was deemed to have been a British subject immediately before the Act commenced. She therefore would have become an Australian citizen if she was born in Australia or in New Guinea, or before marriage and was naturalised in Australia, or was ordinarily resident in Australia and/or New Guinea for the five years immediately before the Act commenced. (Refer to 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 United Kingdom 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 Burma’s departure from the British Commonwealth. Therefore, for example, a person born in Burma but resident in Australia on 4 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 United Kingdom, the Burma Independence Act 1947provided 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.

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People who were domiciled in the United Kingdom or His Majesty’s 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 United Kingdom 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 person’s father or paternal grandfather was born outside Burma in British Territory or in British Protected Territory.

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.

Under Irish law, Irish citizens ceased to be British subjects on 1 January 1949. Under United Kingdom and Australian law, however, Ireland was treated in the same way as His Majesty’s dominions. The Government of Ireland objected in principle to the continuance of Australia’s 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 1948) 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

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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 old Act ‘transitional provisions’, if they were ordinarily resident in Australia for the five 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).

South Africa and Pakistan South Africa and Pakistan remained in the list of Commonwealth countries until 1 December 1973. Therefore, until that date, in Australia, citizens of Pakistan and South Africa had the status of British subjects even though the countries had ceased to be members of the British Commonwealth before then.

Amendments to the Australian Citizenship Act in 1973 had the following effects:

Pakistan and South Africa were deleted from the countries in the then s7, with effect from 1 December 1973

there was a transitional period of 2 years from 1 December 1973 during which citizens of South Africa and Pakistan, who were ordinarily resident in Australia prior to 1 December 1973, retained both the status of British subjects and their entitlement to apply for the grant of Australian citizenship on completion of 12 months’ residence. This arrangement extended to the children of such persons who were under 16 years of age

citizens of Pakistan and South Africa who were ordinarily resident in Australia as at 30 November 1973 became aliens as from 1 December 1975 (unless they acquired Australian citizenship or the citizenship of a country included in s7) and

citizens of Pakistan and South Africa arriving in Australia on or after 1 December 1973 were aliens.

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Chapter 24 - Historical transitional provisions

Overview of the transitional arrangements on 26 January 1949 When the old Act came into effect on 26 January 1949 some people automatically became Australian citizens as a result of the provisions of s25 of that Act. The repeal of s25 on 1 May 1987 did not affect the citizenship status of such people.

A person who believes they may have automatically acquired citizenship through s25 of the old Act will be required to apply for evidence of Australian citizenship so that a finding can be made.

Refer to:

Acquisition by birth, naturalisation or ordinarily resident period

Acquisition by descent

British subject woman who did not otherwise acquire

Chapter 10 - Evidence of Australian citizenship.

Acquisition by birth, naturalisation or ordinarily resident period When the old Act came into effect on 26 January 1949, some people automatically became Australian citizens (s25). The repeal of s25 of the old Act on 1 May 1987 did not affect the citizenship status of such people.

Section 25(1) of the old Act provided that a person became an Australian citizen if they were a British subject immediately prior to 26 January 1949 and had been:

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

born in New Guinea or

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

children whose names were included in a parent’s certificate and

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

had been ordinarily resident in Australia and/or New Guinea for a period of at least five years immediately before 26 January 1949 (that is, between 26 January 1944 and 25 January 1949). This provision may include children born to parents who had resided in Australia prior to 1944 but were absent temporarily from Australia at the time of the child’s birth. In such circumstances despite not having resided in Australia prior to 1944 the child may meet the ordinarily resident requirement because the child resided with the parents.

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Acquisition by descent Refer to:

Born to a father who acquired on 26 January 1949

Born to a mother who acquired on 26 January 1949.

Born to a father who acquired on 26 January 1949

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) - was born in Australia

s25(1)(b) - was born in New Guinea or

s25(1)(c) - had been naturalised as a British subject in Australia (this includes children whose names were included in a parent’s certificate)

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).

Born to a mother who acquired 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.

British subject woman who did not otherwise acquire Section 25(4) provided for a British subject woman who did not otherwise acquire Australian citizenship but had a husband who did (or would have if he had not died) to acquire Australian citizenship on 26 January 1949, if she had entered Australia and been married prior to that date.

Note: A woman who had lost her British nationality as a result of acquiring another nationality by marriage was deemed by s27 to still have been a British subject immediately before 26 January 1949.

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Chapter 25 - External Territories of Australia

Christmas Island Christmas Island (in the Indian Ocean) became an Australian territory on 1 October 1958. Since that date it has been part of Australia for the purposes of the old Act, and is part of Australia for the Act, including for the purposes of Australian citizenship by birth. Permanent residents of the island are eligible for Australian citizenship by conferral under the same criteria applicable to people on mainland Australia, including the residence requirements and discretions.

Residents of Christmas Island on 1 October 1958

In certain circumstances, a person who was ordinarily resident on Christmas Island immediately before the transfer of the Island to Australia (on 1 October 1958) could acquire Australian citizenship by registration of a declaration.

The Christmas Island Act 1958 (s15) provided that a person who was a British subject and ordinarily resident on the Island immediately before 1 October 1958 could make a declaration of desire to become an Australian citizen. For guidance on ‘ordinarily resident’, refer to 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 1 October 1960. A person under 21 years of age could make a declaration within two years after attaining the age of 21 years. These provisions expired on 30 September 1981.

People registered under s15 became Australian citizens on 1 October 1958, the date the Island became an Australian territory. A certified copy of a declaration registered under this provision may be accepted as evidence of Australian citizenship.

The Christmas Island Amendment Act 1980 (s15A) which came into effect on 23 December 1980 provided that people who were ordinarily resident on Christmas Island immediately before the transfer of the Island to Australia on 1 October 1958, could make a declaration that they wished to acquire Australian citizenship, provided they were ordinarily resident in Australia or an external territory. If the declaration was in order, it was registered. A declarant under s15A was deemed to have become an Australian citizen on the date of registration. This provision was repealed on 7 September 1997.

Cocos (Keeling) Islands The Cocos (Keeling) Islands were transferred to Australia on 23 November 1955. Since that date 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.

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Children born in Cocos (Keeling) Islands

Children born in the Territory of Cocos (Keeling) Islands are born in Australia for the purposes of the Act.

Before 20 August 1986, a child born on the Territory of Cocos (Keeling) Islands acquired Australian citizenship by birth unless one of the parents was a foreign diplomat.

On or after 20 August 1986, a child born on the Territory of Cocos (Keeling) Islands acquired Australian citizenship by birth if at least one parent was either an Australian citizen or permanent resident at the time of the child’s birth. If a parent was a resident of the Territory of Cocos (Keeling) Islands, consult the legislative instrument under s5(2) of the Act to determine whether they are considered a permanent resident for the purposes of the Act. Refer to Permanent resident under the old Act.

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. For guidance on ‘ordinarily resident’, refer to Ordinarily resident.

The regulations under that Act prescribed that a person over 21 years of age could make a declaration to become an Australian citizen before 23 May 1959. A person under 21 years of age could lodge a declaration within two years after attaining the age of 21 years. These provisions expired on 22 November 1978.

People registered under those provisions became Australian citizens on 23 November 1955, the date the Islands became an Australian Territory. A certified copy of a declaration registered under this provision may be accepted as evidence of Australian citizenship.

The Cocos (Keeling) Islands Amendment Act 1979 (section 14A) which came into effect on 21 March 1979 provided that people who were ordinarily resident on Cocos (Keeling) Islands immediately before the transfer of the Islands to Australia (23 November 55), could make a declaration that they wished to acquire Australian citizenship provided that they were ordinarily resident in Australia or an external Territory at the time they made the declaration. If the declaration was in order, it was registered. A declarant under s14A was deemed to become an Australian citizen on the date of registration. This provision was repealed on 7 July 1997.

Norfolk Island Norfolk Island is part of Australia for the purposes of the Act, but until 1 July 2016 it was 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.

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In relation to periods spent on Norfolk Island before 1 July 2016, 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, refer to PAM3: Act - Outside the migration zone - Immigration arrangements on Norfolk Island.

Children born in Norfolk Island

Children born in Norfolk Island are born in Australia for the purposes of the Act.

Before 20 August 1986, a child born on Norfolk Island acquired Australian citizenship by birth unless one of the parents was a foreign diplomat.

On or after 20 August 1986, a child born on Norfolk Island acquired Australian citizenship by birth if at least one parent was either an Australian citizen or permanent resident at the time of the child’s birth. If a parent was a resident of Norfolk Island, consult the legislative instrument under s5(2) of the Act to determine whether they are considered a permanent resident for the purposes of the Act. Refer to Permanent resident under the old Act.

Papua - former Australian territory Prior to 16 September 1975, Papua was part of Australia for the purposes of the old Act and therefore people born in Papua acquired Australian citizenship by birth. However, Papua was not part of Australia for the purposes of the Migration Act and people born in Papua had to apply for the right to enter and remain in mainland Australia.

Assessing applications from people born in Papua prior to Papua New Guinea Independence should be referred to the Overseas Citizenship Unit (OCU) for processing. Refer to Chapter 19 - Papua, New Guinea, and Papua New Guinea.

END OF DOCUMENT

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