Australian Citizenship (Permanent Resident) Determination (LIN 22/103) 2022

The instrument directly affects:

• New Zealand citizens in Australia who hold an SCV, regardless of when that SCV was granted.
• New Zealand citizens who held an SCV on or after 1 July 2023 and subsequently hold a permanent visa granted on or after 1 July 2023 (section 4(1)(c)).
• New Zealand citizens outside Australia who, immediately before last leaving Australia, held an SCV or a special purpose visa granted on the basis of their status as an airline crew member or an airline positioning crew member, provided they were not removed or deported (with a limited exception, see section 5(6)).
• New Zealand citizens who have held an SCV and are the holder of a Subclass 189 (Skilled,Independent) visa in the New Zealand stream granted after 31 December 2021 and before 1 July 2023, and their family unit members who satisfied secondary criteria (section 6).
• Any non‑citizen present in Norfolk Island or the Territory of Cocos (Keeling) Islands who can demonstrate the historical lawful presence or relevant visa/endorsement described in section 7 and Schedule 1.
• Practitioners advising on citizenship eligibility, including migration agents, lawyers and in‑house compliance teams, who must accurately calculate the deemed permanent residence date for their clients.

This determination does not impose duties in a conventional regulatory sense. It confers a right: a person who meets the conditions is, or is taken to have become, a permanent resident for all purposes of the Australian Citizenship Act 2007. The most notable practical right is the ability to count time as a permanent resident towards the general residence requirement in section 22 of the Act.

Because the instrument can backdate permanent residence, it can bring forward the date on which an individual meets the “has been a permanent resident for at least 12 months” component of the general residence requirement, or the overall four‑year lawful residence period (which counts time as a permanent resident). No separate application under this instrument is required; the status arises by operation of law once the factual conditions are met. However, an applicant for citizenship must still satisfy the Minister that the conditions are met; the burden of proof rests on the applicant.

There are no penalty provisions in this instrument. It is purely definitional. The consequence of a person incorrectly claiming to be a permanent resident under the determination is that their citizenship application may be refused for failure to meet the residence requirement. The determination itself does not create offences or civil penalty provisions.

Australian Citizenship Act 2007. The instrument is made directly under subsection 5(2). The status of “permanent resident” it confers feeds into section 22 (general residence requirement), section 22A (special residence requirement for persons engaged in activities of a kind specified by the Minister) and any other provision of the Act that uses the concept of permanent resident.

Migration Act 1958. The instrument borrows definitions from subsection 5(1) (“diplomatic or consular representative”) and section 11A (return endorsement). It also relies on the Migration Act’s provisions for removal or deportation (see section 5(1)(b) and (6) of this instrument). The exception in section 5(6) refers to subregulation 5.15A(3) of the Migration Regulations 1994, which provides that certain dependent children are not taken to have been removed or deported for the purposes of particular visa criteria.

Migration Regulations 1994. The instrument adopts from regulation 1.03 the definitions of “airline crew member”, “airline positioning crew member”, “dependent child”, “spouse” and the prescribing of the Subclass 189 (Skilled,Independent) visa. The “New Zealand stream” of that visa is a well‑known pathway under the Regulations. Section 5(1)(c)(ii) refers to a special purpose visa taken to have been granted on the basis of airline crew or positioning crew status, which engages the special purpose visa regime in the Migration Act 1958 and the Regulations.

Pre‑1987 legislation. The instrument mentions the Statute Law (Miscellaneous Provisions) Act (No. 1) 1987 and the Migration Amendment Act 1979 in the definition of “return endorsement”, preserving historical entitlements for Norfolk Island and Cocos (Keeling) Islands residents.

Norfolk Island and Cocos (Keeling) Islands laws. Section 7 requires an analysis of whether a person’s presence before 1 October 2017 was in contravention of a law of Norfolk Island or the Cocos (Keeling) Islands, and whether any limitation of time was imposed. This draws in now‑repealed territorial migration laws.

The determination was originally made on 12 December 2022 as LIN 22/103, commencing on 1 January 2023. A significant amending instrument, LIN 23/024, commenced on 1 July 2023. The compilation date is 1 July 2023.

The amendments made by LIN 23/024:

• Repealed and substituted section 4 (persons who hold a special category visa) and section 5 (persons who have held a special category visa).
• Inserted a new section 6 (persons who have held a special category visa and hold a Subclass 189 visa in the New Zealand stream), which creates a deemed permanent residence date of 1 January 2022 for that cohort.
• Amended the definitions in section 3 to add “Subclass 189 visa” and to adjust other definitions.
• Led to the automatic repeal of the original section 2 (commencement) and section 8 (repeal provision) under sections 48C and 48D of the Legislation Act 2003.

The text does not state a policy reason for the amendments, but the timing coincides with the commencement on 1 July 2023 of a new direct citizenship pathway for New Zealand citizens who hold an SCV. The new section 6 captures a group of New Zealand citizens who had taken up the pre‑existing Subclass 189 New Zealand stream and grants them an even earlier permanent residence date (1 January 2022) than the general SCV‑holder cohort, potentially accelerating their eligibility for citizenship.

As of the compilation date, no court challenges to this instrument are recorded in the source material. The instrument operates determinatively, and its interpretation would typically arise in merits review at the Administrative Appeals Tribunal if the Department of Home Affairs refused a citizenship application based on a finding that the person was not a permanent resident under the determination. Likely areas of dispute include the application of the “first time” SCV grant date where a person has a complex travel history, the interaction between sections 4 and 6 for the same individual, and the precise date on which a person outside Australia becomes a permanent resident under section 5(4). The exclusion of diplomatic and consular families, coupled with the need to use the Migration Regulations definition of “dependent child”, may also generate controversy in individual cases.

Multiple SCV grants and the “first time” rule. Sections 4(2) and (3) and 5(2) and (3) use the concept of “was granted a special category visa for the first time” within a date range or before a date. A New Zealand citizen who first entered Australia decades ago on an SCV, left, and later re‑entered again after 1 July 2022 would still be taken to have become a permanent resident on 1 July 2022 by virtue of that earliest SCV grant, not on the later entry date. The later SCV grant does not reset the deemed permanent residence date.

Overlap between sections 4 and 6. A New Zealand citizen who held an SCV and also obtained a Subclass 189 visa in the New Zealand stream between 1 January 2022 and 30 June 2023 is covered by both section 4 (if they still hold an SCV or held one after 1 July 2023) and section 6. Section 6 gives a deemed permanent residence date of 1 January 2022, which is earlier than the 1 July 2022 or first‑SCV‑date that section 4 would provide. The Department is likely to apply the more favourable date, but practitioners should be alert to any administrative practice that might default to less generous provisions.

Outside Australia: no fixed “deemed” date. Section 5(4) states that “The person is a permanent resident if subsection (1) applies to the person on or after 1 July 2023”. It does not specify the date from which the person is taken to have become a permanent resident. For the purpose of calculating the 12‑month permanent residence period, the start date is therefore the date on which the person satisfies the conditions in subsection (1) on or after 1 July 2023, which is generally the date they last left Australia (being the date they held the requisite visa immediately before departure). This can create a gap if a person left Australia before 1 July 2023; they must rely on subsections (2) or (3) to obtain a backdated date.

Airline crew carve‑in. Section 5(1)(c)(ii) provides that an SCV is not required if, immediately before last leaving Australia, the person held a special purpose visa taken to have been granted on the basis of their status as an airline crew member or an airline positioning crew member. This treats that special purpose visa as equivalent to an SCV for the outside‑Australia pathway. However, the person must still be a New Zealand citizen and not excluded as a diplomatic or consular representative. Evidence of that special purpose visa status may be harder to obtain.

Diplomatic and consular exclusion. The exclusions in sections 4(5) and 5(5) are tied to the time the person was “in Australia as” a diplomatic or consular representative of New Zealand, or as the spouse or dependent child of one. The Migration Regulations definition of “dependent child” is not static; it imports age and dependency criteria. If a child has turned 18 or ceased to be dependent, they may no longer fall within the exclusion, even if their parent remains a diplomatic representative. This nuance is easily missed.

Deportation and removal exception. Section 5(6) provides that a person who has been removed or deported from Australia under the Migration Act 1958 for the purposes of this section does not include a person covered by subregulation 5.15A(3) of the Migration Regulations 1994. That subregulation typically deems certain children not to have been removed or deported. Practitioners assessing a client with a complicated immigration history must examine the precise provision.

Norfolk Island and Cocos (Keeling) Islands evidentiary burden. Section 7 requires proof of lawful presence before 1 October 2017, potentially decades ago, and in the alternative, proof of holding a class of visa in Schedule 1. The Schedule 1 items include very old document types (e.g., “Document or notation permitting residents to return to Australia, issued before 1 November 1979”). Locating contemporary records for these items is a practical challenge.

Definitions incorporate other instruments. Many key terms are defined by reference to the Migration Act 1958 or the Migration Regulations 1994 as in force from time to time. A change to those definitions could alter the scope of this determination without any amendment to the determination itself.

Commencement provision repeal. The repeal of section 2 (commencement) and section 8 (repeal of a previous instrument or transitional) by the Legislation Act 2003 is automatic but may cause confusion for a reader consulting an older version of the determination without the compilation notes.

Identify the correct cohort

1. Is the client a New Zealand citizen?
2. Does the client hold an SCV now, or did they hold an SCV on or after 1 July 2023 and later acquire a permanent visa? If yes, examine section 4.
3. Is the client outside Australia? If yes, examine section 5. Check whether they were removed or deported, and if so, whether the exception in subregulation 5.15A(3) applies. Confirm the visa they held immediately before last leaving Australia: an SCV or a special purpose visa as airline crew (including positioning crew).
4. Does the client hold, or have they held, an SCV and also hold a Subclass 189 visa in the New Zealand stream granted between 1 January 2022 and 30 June 2023? If yes, section 6 applies and the client is taken to have become a permanent resident on 1 January 2022, potentially superseding other dates.
5. Is the client present in Norfolk Island or the Cocos (Keeling) Islands, not an Australian citizen, and able to satisfy the historical lawful presence or old return visa requirements? If yes, section 7 applies.

Gather the evidence

• SCV grant history. Obtain international movement records and any visa grant notices showing the date of first SCV grant and subsequent grants. The “first time” grant date is critical.
• Current visa status. Evidence of the client’s present visa, including any permanent visa grant notice if relying on section 4(1)(c).
• Subclass 189 grant notice. For section 6, secure the grant notification for the Subclass 189 visa, confirming it is the New Zealand stream and showing the date of grant (must be after 31 December 2021 and before 1 July 2023). For family unit members, obtain evidence of satisfying the secondary criteria.
• Airline crew status. If relying on section 5(1)(c)(ii), obtain records from the employer or the Department confirming the special purpose visa status as an airline crew member or positioning crew member.
• Diplomatic exclusion. Check whether the client is or was a diplomatic or consular representative of New Zealand, or the spouse or dependent child of one. If there is any ambiguity, obtain evidence (e.g., letter from the New Zealand High Commission or the Department of Foreign Affairs and Trade).
• Norfolk Island / Cocos records. Gather any old visas, return endorsements, or immigration documents listed in Schedule 1, and evidence of presence before 1 October 2017 and compliance with territorial law.

Calculate the deemed permanent resident date

• For an SCV holder in Australia under section 4: if the person was granted an SCV before 1 July 2022, they are taken to have become a permanent resident on 1 July 2022 (section 4(2)). If the first SCV grant occurred between 1 July 2022 and 30 June 2023, the deemed date is that specific grant day (section 4(3)). If the person is granted an SCV on or after 1 July 2023, they are a permanent resident (section 4(4)), with the date being the date of grant of that SCV (or possibly the date they meet section 4(1) conditions). Note that section 4(4) also applies to a person who satisfies section 4(1)(c) if they have an SCV grant on or after 1 July 2023.
• For a person outside Australia under section 5: if the person was granted an SCV before 1 July 2022, deemed permanent resident on 1 July 2022 (section 5(2)). If the first SCV grant was between 1 July 2022 and 30 June 2023, deemed permanent resident on that grant day (section 5(3)). If the person meets subsection (1) on or after 1 July 2023, they are a permanent resident from that moment (section 5(4)); this is typically the date they left Australia last.
• For a Subclass 189 NZ stream holder under section 6: 1 January 2022, regardless of other SCV dates (section 6(1)).
• For Norfolk Island / Cocos Islands: immediate permanent resident status upon meeting section 7 conditions.

Use in citizenship applications

When preparing a citizenship application that relies on this determination, explicitly state the applicable section and the deemed permanent residence date. Provide the supporting evidence. If the client’s permanent residence date is backdated, calculate the periods of permanent residence accordingly for the general residence requirement. Ensure the client meets all other eligibility criteria under the Act.

Monitor further amendments

The determination expressly incorporates definitions by reference to other legislation, which may change. Check the Federal Register of Legislation for any new amending instruments or compilations. The current compilation date is 1 July 2023; any later determination could alter the categories of persons covered or the deemed dates.