Tough law on the resident requirement for citizenship application. Confused

[beatlespring]

Hi

 

The Department of Immigration has proposed a change to the resident requirement for the citizenship application, which is as following:

 

This item omits the word “for”, and substitutes the word “throughout” in paragraph 22(1)© of the Act.

 

Current paragraph 22(1)© of the Act provides that subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

 

The purpose of this amendment is to put beyond doubt that the 12 month period of the person’s presence in Australia must be continuous.

The current policy is that the applicant can be absent from AU for no more than 90 days in the year immediately before applying

 

I am confused with the CONTINUOUS.

Does this mean that, during the whole 12 months period immedately before the day the person made the application, the applicant can't leave Au even for a day?

 

For example, if the applicant would like to apply on 20/05/2016, does this change mean this person must stay in AU from 20/05/2015, and can't leave AU even for 1 day. If the person is absent from 20/09/2015~25/09/2015, does this mean the person will not be eligible for meeting the resident requirement until 25/09/2015?

[beatlespring]

Nobody knows?

[Quinkla]

It means there is actually no change. If is just a clarifying amendment. The bit about being allowed to be away for 90 days is unchanged.

[beatlespring]

But the explanation memo stated:

 

The purpose of this amendment is to put beyond doubt that the 12 month period of the person’s presence in Australia must be continuous.

 

How to understand the CONTINUOUS?

[Quinkla]

How to understand the CONTINUOUS?

Continuous means without a break. But you must read the section alongside Section 22(1B) which explains how time spent outside Australia during those 12 months can be treated as the person having been present in Australia. This amendment is not changing the law, it is seeking to clarify it.

[beatlespring]

Thanks.

 

The amendment has not been approved yet so I am not sure if there is any change to the S22(1B).

[Quinkla]

There is no change proposed to s.22(1B). There is no change proposed to the effect of the law at all, it is just an amendment for clarity - presumably because someone has tried to interpret s.22(1)© in a way that was not intended.

[Parley]

I read an article on this in the Australian.

It stated the intent as being you have to show a commitment to Australia not just an Australian (ie a partner who maybe Australian).

You are expected to reside in Australia longer particularly in the last year of the 4 year period.

 

I'll see if I can find the article.

[Quinkla]

That sounds fair enough, but I can't see how that amendment will even slightly help to achieve that objective.

[beatlespring]

I think the current S.22(1)© is very clear. How can people interpret this in the other way?

 

Any different to change FOR to THROUGHT?

[Quinkla]

I can only assume that someone has tried to make a case for interpreting "for" as meaning less than "throughout" - i.e. only part of the preceding 12 months. This interpretation would clearly not be what was intended and would not stand up in court, but DIBP may have wanted to neutralise the issue by changing the wording slightly. The intention now is not to change the law, merely to make it clearer.