Australian citizenship: periods of unlawfulness in Australia

Staying in Australia unlawfully, that is, without a visa for a period of time can have adverse consequences on your application to become an Australian citizen. As you will read in this article, periods of unlawfulness in Australia will raise issues of whether you are a person of good character.

Under section 21 of the Citizenship Act 2007 (Cth) (the Act), a person is eligible to seek citizenship by conferral provided that they meet certain requirements which are specified in section 21. One of the section 21(2) requirements which must be met is that the applicant is of good character at the time of the Minister’s decision on the citizenship application.

There is a stark difference between a person claiming that they were not aware of their illegal status in Australia due to an administrative error on the part of the Department of Home Affairs and a person claiming that they had no idea they overstayed or are living in Australia without a visa. We are mainly concerned with situations where the applicant was aware of their illegal status in Australia and did not take active steps to regularize their status in Australia.

Australian Tribunals have held that the words good character extend so far as to mean loyalty to Australia, respect for the rights and liberties of all Australians and obedience to and observance of the law and that an assessment of a person’s character will need to have regard to them. They are measured in party by what a person says, by what a person does and by what a person is heard to say and seen to do. Therefore, if you knew that you were unlawful at any time living in Australia an did not do the right thing by contacting the Department to regularize your status, you are taken to have failed to observe the law by failing to obey it. An applicant’s failure to obey Australian laws by remaining in Australia as an unlawful non-citizen is a serious matter. It is easy to feel sympathetic for people who do not or cannot read or speak English and their lack of support. However, that does not mean a person of devoid of support. It is always recommended for a person to take active steps to regularize their position and to bring themselves into conformity with the laws of Australia as doing so is a hallmark of what is expected of, and required of, good character.

One can argue that their involvement in life in the Australian community will cause their past breaches of the law to vanish or be ignored. Unfortunately, this is not enough. The onus is on the applicant to show that they have taken active steps to make sure that they are not unlawful non-citizens in Australia.

If you are in Australia and are without a valid visa please contact us to help you regularize your status immediately.

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