13Grant of Australian citizenship

#### 13 Grant of Australian citizenship (1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that: (a) the person is a permanent resident; (b) the person has attained the age of 18 years; (c) the person understands the nature of the application; (d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application; (e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application; (f) the person is of good character; (g) the person possesses a basic knowledge of the English language; (h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and (j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia. (1A) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless: (a) the person is a permanent resident; and (b) the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia. (2) Where, by reason of a physical or mental incapacity, not being a temporary incapacity, an applicant under subsection (1) is not capable of understanding the nature of that application, paragraphs (1)(c), (g) and (h) do not apply in relation to that person. (3) Paragraphs (1)(d) and (e) do not apply in relation to: (a) a person who has completed not less than 3 months’ relevant defence service; or (b) a person who has been discharged from relevant defence service, before completing 3 months of that service, as medically unfit for service or further service and who became medically unfit by reason of the person’s relevant defence service. (3A) Paragraphs (1)(d) and (e) do not apply in relation to: (a) a person who has completed full‑time service as a member of an Australian reserve force for a period of, or for periods amounting in the aggregate to, not less than 6 months; or (b) a person who: (i) has been discharged from service as a member of an Australian reserve force before completing full‑time service as such a member for a period of, or for periods amounting in the aggregate to, 6 months; and (ii) was so discharged as medically unfit for service or further service; and (iii) was so discharged while undertaking full‑time service as a member of the reserve force; and (iv) became medically unfit for service because of the person’s service as a member of the reserve force. (4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship: (a) the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and (b) subject to paragraph (a), the Minister may, in the Minister’s discretion: (i) treat a period during which the applicant: (A) was a permanent resident; (B) was not present in Australia; and (C) was engaged in activities that the Minister considers beneficial to the interests of Australia; as a period during which the applicant was present in Australia as a permanent resident; (ii) treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years; (iv) if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant—treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non‑citizen, as an illegal entrant, as an unlawful non‑citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or (v) if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia—treat the period as a period during which the applicant was present in Australia as a permanent resident. (5) Paragraph (1)(e) does not apply in relation to a person who was formerly an Australian citizen or who was born in Australia. (6) Paragraphs (1)(g) and (h) do not apply in relation to a person who satisfies the Minister that the person is suffering (otherwise than temporarily) from a loss, or from a substantial impairment, of hearing, speech or sight. (7) Paragraph (1)(g) does not apply to a person who has attained the age of 50 years. (8) Paragraph (1)(h) does not apply to a person who has attained the age of 60 years. (9) Subject to subsection (11), the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person: (a) who has not attained the age of 18 years; (b) who: (i) has attained the age of 18 years; and (ii) has made the application before attaining that age; (c) who is a permanent resident and is the spouse, widow or widower of an Australian citizen; or (d) who: (i) has attained the age of 16 years; and (ii) is a permanent resident and the spouse of a person who has been granted a certificate of Australian citizenship but has not yet acquired Australian citizenship by virtue of the operation of section 15. (9A) Subsection (9) does not apply to a person to whom subsection 5A(5) applies. (9B) Subject to subsection (11), the Minister may, in the Minister’s discretion, on application in accordance with the approved form, grant a certificate of Australian citizenship to a child if: (a) the child was under 16 at the time of the application; and (b) the application is set out in the same document as an application made under subsection (1) by a responsible parent of the child for the grant of a certificate of Australian citizenship to the responsible parent. (9C) The same form may be approved for the purposes of subsections (1) and (9B). (9D) An application under subsection (9B) may be set out in the same document as an application under subsection (1) if the applicant under subsection (1) is a responsible parent of the applicant under subsection (9B). (9E) Subject to subsection (11), the Minister may, in the Minister’s discretion, on application in accordance with the approved form, grant a certificate of Australian citizenship to a child if, at the time of the application: (a) the child was under 16; and (b) a responsible parent of the child is an Australian citizen because of the operation of section 15. (11) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E): (a) during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person; or (b) during any period during which the person is confined to a prison in Australia; or (c) during the period of 2 years after the expiration of any period during which the person has been confined in a prison in Australia by reason of the imposition on the person of: (i) a sentence of death that has been commuted to a sentence of imprisonment; or (ii) a sentence of imprisonment for life or for a period of not less than 12 months; or (ca) if the person is a serious repeat offender in relation to a sentence of imprisonment (within the meaning of subsection (11A))—during the period of 10 years after the end of any period during which the person has been confined in a prison in Australia because of the imposition on the person of that sentence; or (d) if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or upon licence to be at large—during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole of that sentence, or the whole or a part of the remainder of that sentence, as the case requires; or (e) if the person has been released by a court from serving the whole or a part of a sentence of imprisonment upon the person’s giving a relevant security—during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by reason of a breach of a condition of that security; or (f) during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person; or (g) if the person has ceased to be an Australian citizen—during the period of 12 months commencing on the day on which the person ceased, or last ceased, to be an Australian citizen. (11A) For the purposes of paragraph (11)(ca), if: (a) a serious prison sentence was imposed on a person; and (b) the person was confined in a prison in Australia because of the imposition of that sentence; and (c) another serious prison sentence was imposed on the person in relation to an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of the sentence mentioned in paragraph (a); the person is a serious repeat offender in relation to the other sentence. For this purpose, a serious prison sentence is: (d) a sentence of imprisonment for life; or (e) a sentence of imprisonment for a period of not less than 12 months. (12) Where the Minister makes a decision under this section refusing an application and the applicant is present in Australia, the Minister shall cause to be served on the applicant a notice in writing setting out that decision. The notice may be served personally, by post or by an electronic communication. (13) Nothing in paragraph (4)(a) or subsection (11) shall be taken, by implication, to limit the generality of paragraph (1)(f). (16) A reference in paragraph (4)(a) or (11)(c) to a period during which a person has been confined in a prison does not include a reference to a period during which the person has been so confined by reason only of the person’s serving a sentence relating to a conviction that has subsequently been quashed. (17) In paragraph (11)(e), relevant security means a security given by a person, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour.