Citizenship: "When did you first arrive lawfully in Australia?"

Hi,

I'm trying to figure out when my wife and me are eligible to apply for citizenship, I've done the immi wizard and it says now, but I thought it wasn't until next May.

First my wife.

Came to Aus for a holiday 2008 for 3 weeks.

Holiday visited again 2009 - 2 weeks.

176 granted Nov 2009, arrived as PR May 2010.

Been overseas 5 times since then, all for a 2-3 weeks each, 2 trips in the last year total 5 weeks.

When I put this into the wizard (with accurate dates) it comes back with "You may be eligible for Australian citizenship - General eligibility"

Thing is, 4 years is not up until May 2014, from the date of arrival as a PR? I put the "first arrived lawfully" as 2008, we had a visa, even though it was a holiday one. The help says "Please enter the date when you first arrived lawfully in Australia. You arrived lawfully if you held an Australian visa."

My history is as above, but this is my 2nd time as a PR, I lived here for 4 years in the 90's then went back, PR lapsed and had to get it again, how I wish I'd got citizenship then but there you go.

I'm keen to apply as soon as possible and would love to do it on Australia Day, but thought I had another 6 months to go? Any suggestions or should I call them?

I believe you need four years of residence. Therefore travel on a holiday visa would not count and residence would start when you first arrived in Australia with a PR visa, even if it was just a validation visit. That's based on trying to interpret this page http://www.citizenship.gov.au/applying/how_to_apply/migrant_perm_res/ which is not a masterpiece of clarity.

I believe you need four years of residence. Therefore travel on a holiday visa would not count and residence would start when you first arrived in Australia with a PR visa, even if it was just a validation visit. That's based on trying to interpret this page http://www.citizenship.gov.au/applying/how_to_apply/migrant_perm_res/ which is not a masterpiece of clarity.

Only the last year of the four years you spend in the country has to be on a PR visa. The three years before it can be on any other type of visa.

I believe you need four years of residence. Therefore travel on a holiday visa would not count and residence would start when you first arrived in Australia with a PR visa, even if it was just a validation visit. That's based on trying to interpret this page http://www.citizenship.gov.au/applying/how_to_apply/migrant_perm_res/ which is not a masterpiece of clarity.

Not so according to the Australian Citizenship Instructions on the same website (http://www.citizenship.gov.au/_pdf/acis-july-2013.pdf)::

All periods of lawful residence in Australia, such as temporary visas, visitor visas, student visas, all classes of bridging visas etc, are taken into account when calculating the four year lawful residence period.

But visitor visas would only count if there was a continuity between the residence granted by a visitor visa and subsequent visas, surely? The requirement is to have been living lawfully in Australia for four years and that can't happen of there is a gap between visas or a period in those 4 years when a person could not lawfully be in Australia.

Oooh interesting thread! I thought it was a straight forward 4 years after having arrived (to live, not validation...) in Australia on the back of a PR visa. Clearly not the case!

But visitor visas would only count if there was a continuity between the residence granted by a visitor visa and subsequent visas, surely? The requirement is to have been living lawfully in Australia for four years and that can't happen of there is a gap between visas or a period in those 4 years when a person could not lawfully be in Australia.

Providing you are not out of Australia for more than twelve months (and 90 days in the final year) for the four years preceding your application the residency start date can be a holiday:

Australian Citizenship Act 2007 Residence Requirements

To satisfy the residence requirements you must have:

 

 

• 4 years lawful residence in Australia. This period must include 12 months as a permanent resident immediately before making an application for Australian citizenship

• and

• absences from Australia of no more than 12 months in total in the 4 years prior to application, including not more than 90 days in the 12 months immediately prior to application.

But visitor visas would only count if there was a continuity between the residence granted by a visitor visa and subsequent visas, surely? The requirement is to have been living lawfully in Australia for four years and that can't happen of there is a gap between visas or a period in those 4 years when a person could not lawfully be in Australia.

This.

You can count a tourist visa before the PR visa, but only if you held a visa of some description continuously, if you had any gaps between the tourist visa expiring and the PR visa starting then you cannot count the tourist visa.

This.

 

You can count a tourist visa before the PR visa, but only if you held a visa of some description continuously, if you had any gaps between the tourist visa expiring and the PR visa starting then you cannot count the tourist visa.

Not so according to the Australian Citizenship Instructions on the same website (http://www.citizenship.gov.au/_pdf/a...ly-2013.pdf)::

All periods of lawful residence in Australia, such as temporary visas, visitor visas, student visas, all classes of bridging visas etc, are taken into account when calculating the four year lawful residence period.

Residency calculator can start when you arrive on a tourist visa, providing you go on to meet the "resident for four years, with no more than a year out of the country condition". There is no continuosly requirement.

Yep, Peach is correct on this one, IMO. If OP entered all dates accurately in the Citizenship calculator, I'd trust it in this case. It sounds plausible with the dates given.

Yep, Peach is correct on this one, IMO. If OP entered all dates accurately in the Citizenship calculator, I'd trust it in this case. It sounds plausible with the dates given.

I wouldnt trust it! I have been back and forward a few times, the wizard on the new DIBP website said I may be eligible, the one on the old DIAC said no. Easiest thing was to phone DIMP and they checked with my passport number, got to wait another 6 months so the new wizard was wrong!

You may have spoken to someone in the call centre that didn't know what they were talking about, DIBP openly say that they aren't there to provide advice.

Not so according to the Australian Citizenship Instructions on the same website (http://www.citizenship.gov.au/_pdf/a...ly-2013.pdf)::

 

Residency calculator can start when you arrive on a tourist visa, providing you go on to meet the "resident for four years, with no more than a year out of the country condition". There is no continuosly requirement.

I did not say they need to be in the country continuously, I said that they need to have held a visa that would enable them to be in the country for four years, continuously.

If they did not hold the visas continuously, then they could not possibly have been "resident for four years with no more than a year out of the country" because at that time when they had a gap in visas, they did not hold residence of any description.

Yep, Peach is correct on this one, IMO. If OP entered all dates accurately in the Citizenship calculator, I'd trust it in this case. It sounds plausible with the dates given.

I don't think there is enough information to say and indeed even the message from the website only indicates that it is a possibility. IT will come down to the precise expiry dates of the tourist visa and the PR visa grant date and whether they are continuous.

You may have spoken to someone in the call centre that didn't know what they were talking about, DIBP openly say that they aren't there to provide advice.

I don't think there is enough information to say and indeed even the message from the website only indicates that it is a possibility. IT will come down to the precise expiry dates of the tourist visa and the PR visa grant date and whether they are continuous.

My understanding is that it does absolutely not have to be continuous. If it had to be continuous, there would be no allowance for being out of the country for one year total out of the four.

Does anyone know what happens if you apply and DIBP say you aren't eligible?

I'm in exactly the same situation as the OP right now...I first came to Oz in 2007 for a holiday....then I came again for a holiday in June 2010 for 2 months...and finally got granted a Temp Resident visa in Sept 2010, eentered on it in Oct 2010 and was granted PR onshore Oct 2012. I first legally entered Oz more than 4 years ago. I've spent 3 of the last 4 years in Oz and have been a PR for more than 12 months with no time out of Oz. If having a break in visas is an issue, then I can look forward to June...that'll be 4 yrs since I arrived on a tourist visa, and I'll have been out of Oz for 2 months in 4 years. Or do I wait till November when I have been a Temp Resident (then PR) for 4 years? Confused?? I am!

The OP hasn't said they didn't have a visa...in the last 4 years...they came on a tourist visa in March 2009 for 2 weeks. They then had a 176 granted in November that year...it's entirely possible they still had a valid tourist visa during that time spent outside of Oz. That said...the 176 wasn't activated until May 2010, so does a granted but unactivated visa count?

If it was a big deal and only a short time difference, I'd say err on the side of caution...but what happens if you apply and aren't eligible? Do you lose your application fee? Is that all that happens or is it a big no no? Does it take 6 months to find you are ineligible and you have to reapply when if only you had waited 3 months you would defo have been eligible second time, so you are 3 months behind, etc...It seems so simple, but it is actually just that little bit more complicated than meets the eye...

I don't think there is enough information to say and indeed even the message from the website only indicates that it is a possibility. IT will come down to the precise expiry dates of the tourist visa and the PR visa grant date and whether they are continuous.

I do find the possibility that someone who had their PR granted a year after mine could become a citizen sooner on the the strength of a holiday they had to Australia the year before quite confounding.

My understanding is that it does absolutely not have to be continuous. If it had to be continuous, there would be no allowance for being out of the country for one year total out of the four.

I will try again.

The visas need to be continuous. Not the time spent in Australia, just the visas held need to cover the whole four years.

Holding a visa and physically being in the country, are two completely separate things do you agree?

This is the distinction that qunikla and now Iam looking to make.

I do find the possibility that someone who had their PR granted a year after mine could become a citizen sooner on the the strength of a holiday they had to Australia the year before quite confounding.

And quite possibly they cannot and will not get it before you. It just depends whether they had a long tourist visa that lasted up until the moment the next visa was granted. When I say lasted I mean had an expiry date after the next visa granted, regardless of where they physically were.

I do find the possibility that someone who had their PR granted a year after mine could become a citizen sooner on the the strength of a holiday they had to Australia the year before quite confounding.

I think the "12 months away from Australia" may unconfound in my case, although it looks like the possibility could exist for other people. I need to check the exact dates but I think the period from my 2009 holiday and arriving with PR in 2010 was around a year, then I've been away on various trips for well over a month since, without them I may have been eligible now. Certainly my tourist visa was current when my PR was granted.

I think the "12 months away from Australia" may unconfound in my case, although it looks like the possibility could exist for other people. I need to check the exact dates but I think the period from my 2009 holiday and arriving with PR in 2010 was around a year, then I've been away on various trips for well over a month since, without them I may have been eligible now. Certainly my tourist visa was current when my PR was granted.

So if you look back from today there are two things to check. First that your time out of the country is within the allowable amounts and the second is do you hold visas for the entire period (regardless of where you physically were)? If the answer is yes to both then indeed you may well be eligible.

But you mention that you had a gap of a year between your holiday and getting the permanent visa, did you really hold the tourist visa all this time? That means you applied for the one year tourist visa?

I wonder also whether you can count all the validity of a visitor visa that allows multiple stays of three months. Logic would tell me that you could only count time for three months as otherwise you get into issues of continuity. You can't have been continuously resident for a year in which you had to keep leaving every three months.

I think the rules are badly drafted at the moment, but it is not easy to see how you could define residence in a better way that could be determined on the basis of information available to DIAC.

So if you look back from today there are two things to check. First that your time out of the country is within the allowable amounts and the second is do you hold visas for the entire period (regardless of where you physically were)? If the answer is yes to both then indeed you may well be eligible.

 

But you mention that you had a gap of a year between your holiday and getting the permanent visa, did you really hold the tourist visa all this time? That means you applied for the one year tourist visa?

Yes, my visitor visa was applied for in June 2009, and was valid for 12 months, however as I understand it, as soon as I was granted PR (Nov 2009) it superseded my visitor visa. However one was in effect when the other was granted, I actually validated PR before the expiry date of my vistor visa, next question is, is a visitor visa (called an ETA), actually a visa. Come to think of it the question is "when did you lawfully arrive in Australia", doesn't mention visa/eta at all.

I'm off to re-do the citizenship wizard.

Yes, my visitor visa was applied for in June 2009, and was valid for 12 months, however as I understand it, as soon as I was granted PR (Nov 2009) it superseded my visitor visa. However one was in effect when the other was granted, I actually validated PR before the expiry date of my vistor visa, next question is, is a visitor visa (called an ETA), actually a visa. Come to think of it the question is "when did you lawfully arrive in Australia", doesn't mention visa/eta at all.

 

I'm off to re-do the citizenship wizard.

An ETA is surely only valid for three months?

But yes it would be lawful residence, it is temporary residence but still residence and yes it is lawful. There is no debate in my mind over whether a tourist visa counts, just the continuity question.