What happens if you are in a partner relationship with an Australian citizen and do not meet the residence requirement for Australian citizenship?
The answer to this question as clearly addressed in a recent Tribunal’s decision.
Subsections 22(1A) and (1B) of the Citizenship Act allow that a person may be overseas for part of the four year period referred to at s 22(1)(a) and part of the 12 month period referred to at s 22(1)(c). In the case of the requirement to have been in Australia for the four year period before the application, the total period of absence must not be more than 12 months. In the case of the requirement to have been in Australia as a permanent resident for the 12 months before the day the application, the total period of absence must not be more than 90 days. The applicant was only present in Australia for 156 days in the four year period prior to making the citizenship application.
However, the Minister may exercise his discretion under section 22(9) of the Citizenship Act. This provision states that if the applicant is the spouse of an Australian citizen at the time of submitting the citizenship application, the Minister may treat a period as one in which the applicant was present in Australia as a permanent resident if you can establish the following:
- the applicant was the spouse of an Australian citizen during that period; and
- the applicant was not present in Australia during that period; and
- the applicant was a permanent resident during that period; and
- the Minister is satisfied that the applicant had a close and continuing association with Australia during that period.
One can argue that being in a spousal relationship with an Australian citizen should be enough to satisfy the requirement for citizenship if the person has been absent from Australia for a substantial period. However, the requirements as outlined above require the applicant to demonstrate close and continuing association with Australia. There are a number of factors that will be taken into account to determine whether an applicant has close and continuing association with Australia, for example:
- length of relationship with an Australian citizen spouse
- extended family in Australia
- return visits to Australia
- periods of residence in Australia
- employment in Australia
- ownership of property in Australia
- evidence of income tax payment in Australia
- evidence of active participation in Australian community
Australian citizenship laws can be difficult to prove often times. There are a lot of complexities when an applicant has not been present in Australia and has spent most of their time overseas. This is why we recommend using a professional migration agent to assist you in this complex situation. At Aussie Immigration Services, we are confident our professional migration agents will be able to provide you clear and concise advice regarding your complex citizenship matters.
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