Quote:
Originally Posted by Gollywobbler
Why do you think my question is irrelevant, please?
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Gill,
This topic is followed with intense interest by all aspiring as well as current permanent residents, and not surprisingly so.
I've drawn up a diagram illustrating the legislative arrangements relevant to this question. I am in the process of putting this up to my website, so I ask for everyone's patience while I do the needful.
The law is explicit in this: if you are in Australia on Commencement Day of the new Act, and you hold a permanent visa in any shape and form, you will need to meet the 2 of 5 rule
if you apply for citizenship within 3 years of Commencement. There's no choice in this, you will not be eligible to apply under the new Act, even if you would qualify for citizenship under the new Act faster than under the old Act.
If you are outside of Australia on Commencement Day, you need to be classified as a permanent resident under the old Act. This is where I need to stop typing and let my diagram to the work, as it is quite a maze referring to all the various Acts and Regulations. Ultimately, the law explicitly spells out who is a permanent resident for this purpose. Only a holder of a Resident Return Visa is considered to be a permanent resident while outside of Australia.
DIAC's letters granting permanent visas carry a paragraph advising recipients of the imminent changes in Australian citizenship rules. DIAC simplifies what is defines as a permanent resident in that paragraph and does not address the issue of what happens to people who have been granted a permanent visa which has been duly validated and aren't in Australia on Commencement Day.
As Departmental Policy cannot override laws enacted by Parliament, it doesn't matter if DIAC thinks you're a permanent resident or not - ultimately you need to look at what the Act and Regulations say, and if need be what the High Court decides. My opinion on this is not explicit but can be inferred by my diagram.
The new Act exempts permanent residents from the new 4-year requirement. This is allowed only if you apply within 3 years of Commencement. So, really, if you've been granted a permanent visa, and have no intention of
migrating to Australia within 1 year of Commencement, it's
irrelevant whether or not a validated permanent visa is enough for the 2/5 rule. One year is not a very long time to make up your mind about migration.
Given the intense interest in this topic, I may just put my diagram up on ebay or something. For what it's worth, my diagram isn't actually written in plain English :)
And for the record, this is the longest and most detailed explanation from me on this topic. I didn't fully enter the exhaustive discussions in BritishExpats as it would have been difficult to focus everyone on the issues I have to point out. So Gill, this one's only because you asked personally :)
Peter
