Citizenship

Based on the contribution of Michael Clothier, Accredited Immigration Law Specialist, as amended by Er-kai Wang, registered migration agent and Associate Lecturer at ANU College of Law and current to 19 July 2018

NOTE: The Immigration and Refugees chapter is under substantial revision. The information in the following section may not be accurate. Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law is still current by seeking advice from a migration agent or visiting the Department of Home Affairs' website.

Legislation

The Australian Citizenship Act 1948 (Cth) was replaced on 1 July 2007 by the Australian Citizenship Act 2007 (Cth) ('Citizenship Act'). The new Act and Migration Regulations provide that Australian citizenship is acquired:

1. by reason of birth in Australia;
2. by descent where children are born outside Australia of Australian parents; or
3. by conferral.

Separate Australian citizenship dates only from the coming into effect of the previous Australian Citizenship Act 1948 (Cth) on 26 January 1949. Before that date the nationality of Australians was simply described as “British subject”. If non-British subjects wanted the right to vote, they had to become “naturalised” and this turned them into British subjects.

Since 1973 and until 1984, a citizen of a Commonwealth country (including Australia) had the status of a British subject. This status was removed by the Australian Citizenship Amendment Act 1984 (Cth).

Generally, enrolment on the Commonwealth electoral roll and voting at elections and referendums is compulsory for Australian citizens over the age of 18 years. This compulsory enrolment and voting provision also applies to persons over 18 years of age who have lived in Australia for at least six months and are citizens of the Commonwealth countries listed in s 7 of the 1948 Citizenship Act.

Citizenship by Birth

Section 12 of the Citizenship Act states that every person born in Australia is an Australian citizen with the exception of:

1. Persons born on or after 20 August 1986 where both parents of the person were not Australian citizens or permanent residents of Australia at the time of the person’s birth.
   
   This requirement largely prevents the children of illegal entrants from becoming Australian citizens by the mere fact of their birth in this country. However, one exception is where a person born to illegal immigrants has actually lived (been ordinarily resident) in Australia for a period of 10 years from the date of their birth. On their tenth birthday, they automatically become an Australian citizen. The children of illegal entrants will usually have the same citizenship as one or both of their parents. If they cannot acquire a citizenship through their parents, or through 10 years of residence, the minister will still grant Australian citizenship but only if such a grant would be needed to prevent them from being stateless (s 21(8) Citizenship Act).
   
   
2. Equally, a person is an Australian citizen if the person is found abandoned in Australia as a child, unless the contrary is proved (s 14 Citizenship Act).

Citizenship by Adoption

A person who is legally adopted in Australia under a law in force in a state of territory of Australia by an Australian citizen, or by two persons at least one of whom is an Australian citizen, shall automatically become an Australian citizen if, at the time of their adoption, the adopted person is present in Australia as a permanent resident (s 13 Citizenship Act).

Citizenship by Incorporation of Territory

A person will be an Australian citizen if any territory becomes a part of Australia and the person is included in a class of persons specified in a determination made by the minister (s 15 Citizenship Act).

Citizenship by Descent

In certain circumstances a person born outside Australia may become an Australian citizen through their parents’ status as Australian citizens. At the time of the birth at least one of the parents must be an Australian citizen. It is, in effect, citizenship through inheritance. Such citizenship is not automatic, like birth in Australia.

A person born outside Australia after 26 January 1949 is eligible for citizenship by descent if, at the time of their birth, at least one parent was an Australian citizen. If the Australian citizen was themselves an Australian citizen by descent, the parent must have been lawfully present in Australia for a total of at least two years before the application is made (s 15A Citizenship Act).

Citizenship by Conferral

Non-citizen children born outside Australia and adopted outside Australia by one or more Australian citizen parent may apply for a grant in accordance with the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) (s 19B
Citizenship Act).

Citizens of other countries who are settled permanently in Australia may apply for and receive Australian citizenship by the process of grant.

To be granted citizenship, an applicant has to satisfy a number of statutory requirements. They should:

1. be a permanent resident who was granted permanent residence after 1 July 2007;
2. be 18 years or over;
3. understand the nature of the application;
4. have been lawfully present in Australia for at least four years including at least 12 months as a permanent resident. Absences of up to 12 months are allowed during the four years, including no more than three months absence during the 12 months immediately before applying. However, if a person was born in Australia or is a former Australian citizen, they need only be present in Australia as a permanent resident for 12 months.
5. be of good character;
6. possess a basic knowledge of the English language;
7. have an adequate knowledge of the responsibilities and privileges of Australian citizenship (and in some circumstances, pass a test (see below); and
8. if granted Australian citizenship, be likely to live or continue to live in Australia or to maintain a close and continuing association with Australia.

Citizenship Test

Under the Australian Citizenship Amendment (Citizenship Testing) Act 2007 (Cth), the government put in place a citizenship test for most applicants (from 1 October 2007). To get an overview of the test and a free copy of the test resource book - Australian Citizenship: Our Common Bond.

People under the age of 18 years or over the age of 60 years are exempt from taking the test, as are those with a permanent physical or mental incapacity that means they are not capable of understanding the nature of their application. The test:

• is in English;
• is computer based;
• consists of 20 multiple-choice questions (including three mandatory questions) that are based on the responsibilities and privileges of Australian citizenship;
• has a pass mark of 60 per cent, including correctly answering all three mandatory questions.

There is not a separate English language test; English language skills are measured by the applicant’s ability to pass the test, which is available in English only. The information about Australia on which the questions are based is widely available. Practice tests are available.

Exemptions to Part or All of the Residence Requirements

The above requirements have to be met by most applicants. In certain circumstances, specific requirements do not have to be met, and the minister can waive certain requirements. Permanent physical or mental incapacity, the age of the applicant, service in Australia’s armed forces, and hardship caused by a refusal to grant citizenship are factors that may result in some requirements being waived.

Spouses, widow(s), or interdependent (same-sex) partners of Australian citizens who are permanent residents can have periods of time spent overseas as a permanent resident counted towards the required periods of lawful residence in Australia, if the minister is satisfied that the person had a close and continuing association with Australia during those periods (s 22(11), Citizenship Act).

Time spent in prison or in a psychiatric institution affects the length of residence requirements (ss 22(1C), (5A)).

An applicant who cannot meet all requirements should ask the Department about exemptions.

Citizenship Pledge

A pledge of commitment as a citizen of the Commonwealth of Australia must be made by virtually all applicants over 16 years. It must be made to the minister or a person authorised by the minister (s 27, Citizenship Act; sch 1). The pledge reads:

Rights

People acquiring Australian citizenship are entitled to the same rights as those born in Australia. These include:

1. the right to apply for appointment to any public office or to stand for election as a member of parlia­ment (although holding joint nationality can create serious predicament in the federal parliament);
2. the right to vote at state and Commonwealth elections; and
3. the right to apply for an Australian passport and to leave and re-enter Australia without needing an authority to return.

Renunciation of Citizenship

Australian citizenship can be renounced in limited circumstances. An Australian citizen who is 18 years or older, and is a national or citizen of a foreign country, may renounce their Australian citizenship by applying to the minister. When the minister approves the application, the person ceases to be an Australian citizen (ss 33(1) & (8) Citizenship Act).

If the person would become stateless upon renunciation, or if the person is a citizen of a country with whom Australia is at war, the minister must not grant approval (ss 33(4), (5), (6), (7)).

An Australian citizen who was born in, or who is ordinarily a resident in a foreign country, and cannot become a national or citizen of that country while remaining an Australian citizen, may renounce their citizenship. The minister cannot register a declaration renouncing citizenship if it is not in Australia’s interests (ss 33(3)).

Loss of Citizenship by Revocation

The minister has power to revoke the Australian citizenship of any person who received such citizenship by application and conferral and who, under s 34 of the Citizenship Act, has:

• been convicted of having made a false statement or concealed a material circumstance in connection with their application for citizenship; or
• obtained the approval to become an Australian citizen as a result of migration-related fraud; or
• whose approval was connected with the migration-related fraud of a third party,
• and the minister is satisfied that it is against the public interest for that person to continue to be an Australian citizen.

The minister may also exercise this power of deprivation against a person convicted of any offence and sentenced to at least 12 months imprisonment, provided the offence was committed before the grant of Australian citizenship. If the person is present in Australia a copy of the minister’s order must be served on that person (s 34, Citizenship Act).

The AC Act also provides that where the responsible parents or guardians of a child (i.e. someone aged under 18 years) cease to be Australian citizens, other than by their death, and the child has another citizenship, then the child ceases to be an Australian citizen (s 34).

Automatic Cessation of Citizenship

Australian citizens can now swear allegiance to another country and thereby acquire another citizenship by doing a “formal act or thing” and not lose their Australian citizenship. However, an Australian “dual national” who serves in the armed forces of a country at war with Australia ceases thereby to be an Australian citizen (s 36, Citizenship Act).

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) came into force on 11 December 2015. It allows for the automatic renunciation of Australian citizenship if a person aged 14 or older – who is also a national or citizen of a country other than Australia – acts inconsistently with their allegiance to Australia by engaging in conduct specified in the Act. That conduct is:

1. engaging in international terrorist activities using explosive or lethal devices;
2. engaging in a terrorist act;
3. providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;
4. directing the activities of a terrorist organisation;
5. recruiting for a terrorist organisation;
6. financing terrorism;
7. financing a terrorist;
8. engaging in foreign incursions and recruitment.

Resumption of Citizenship

In some circumstances, a former citizen may resume citizenship that has been lost.

How to Apply for Citizenship

The Citizenship Act makes no provision for immigrants, regardless of their nationality or length of residence in Australia, to acquire citizenship automatically. Accordingly an application must always be made.

Application forms may be obtained from the Department. When the form has been completed and returned to the Department the applicant is asked to attend an interview with a member of the staff.

Any documents showing present nationality and date and place of birth should be brought to the interview, together with the applicant’s marriage certificate if married to an Australian citizen, birth certificate of spouse (if born here) or citizenship certificate (if naturalised).

Following approval of the application (which usually takes between three and six months from the date of the interview) the applicant will receive an invitation to attend a citizenship ceremony. The ceremonies are usually held in local town halls or other civic buildings. Once the applicant has taken a pledge of commitment, a certificate of citizenship will be presented.

Possible Changes to Citizenship Laws

On 20 April 2017, the Australian Government announced it is strengthening the integrity of Australian citizenship. The Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill) was introduced into Parliament on 15 June 2017. On 18 October 2017, the Government proposed amendments to the Bill.

As a result of the proposed amendments and subject to the passage of legislation, the new requirements for citizenship will come into effect on 1 July 2018 and include:

• increasing the general residence requirement: applicants for Australian citizenship will need to demonstrate a minimum of four years permanent residence immediately prior to their application;
• introducing an English language test: applicants will need to demonstrate competent English language listening, speaking, reading and writing skills before being able to sit the citizenship test;
• strengthening the Australian values statement to include a reference to allegiance to Australia: applicants must undertake to integrate into and contribute to the Australian community;
• strengthening the Australian citizenship test: applicants will have to answer new test questions about Australian values, and the privileges and responsibilities of Australian citizenship;
• introducing an integration requirement: applicants must demonstrate how they are integrated into the Australian community;
• strengthening the pledge of commitment as a citizen of the Commonwealth of Australia in the AC Act to include allegiance to Australia: all applicants for Australian citizenship must make the pledge (previously, only individuals aged 16 years and over had to make the pledge).

Review of Decisions on Citizenship

An applicant can seek merits review at the General Division of the Tribunal with regard to the minister’s decision in a range of citizenship decisions, including (s 52 Citizenship Act):

1. a refusal to grant citizenship;
2. a refusal to approve the renunciation of Australian citizenship;
3. a cancellation of an approval prior to the applicant taking the pledge; or
4. a revocation to a previous grant of citizenship.