Acquiring citizenship is the final stop for many Australian migration journeys. Once a citizen, the person is no longer subject to the Migration Act 1958 (Cth) because they are no longer a non-citizen. Instead, the Australian Citizenship Act 2007 (Cth) applies aside from some rare cases.

The choice to become an Australian citizen by way of conferral (application) is a decision that must be carefully thought through. Permanent visa holders should consider the implication of becoming an Australian citizen relating to their “home” country or countries. Many countries do not allow dual citizenship and acquiring citizenship of another country may also have welfare or tax implications, among other things.

One of the primary requirements for citizenship by conferral is to be lawfully residing in Australia.

The high-profile and ironic case of Quade Cooper, a former Australian Wallaby rugby player who had four Australian citizenship applications refused for not meeting the residency requirement, has prompted a reconsideration for those who frequently travel for work.

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Aff​airs announced today that the special residency requirements will be extended to all “distinguished talent visa holders and to athletes in the Australian Commonwealth Games team.”

There are four ways to meet the residency requirements with few exceptions. Many Administrative Appeals Tribunal (AAT) and court cases detail how high the bar is set with many appeals failing.

General residency requirement

Most applicants must meet the general residency requirement for which they must have been lawfully residing in Australia for at least 4 years immediately before applying with no less than the last 12 months as a permanent visa holder. They may have left Australia for up to 12 months during the four-year period but only 90 days of those 12 months can be in the last year.

Those born in Australia or who were an Australian citizen before making the application do not need to meet the 4-year residency requirement and may be unlawful during the 4 years prior to applying.

Being confined to a prison or a psychiatric institution will general not count towards the residency requirement and discretionary exemptions can apply based on an administrative error, significant hardship or disadvantage, or having a close and continuing association with Australia while also being in an interdependent relationship or being the spouse or de facto partner or surviving spouse or de facto partner of an Australian citizen.

Special residency requirement – Activities of benefit to Australia

For those that need to become an Australian citizenship to engage in an activity that would be of benefit to Australia, the residency requirement is significantly reduced.

Applicants must have been a permanent resident and ordinarily resident in Australia for at least 2 years immediately before applying and must have been in Australia for at least 180 days of those two years and at least 90 days in the last year.

This can be reduced even further if they were a permanent resident for at least the last 90 days and were not an unlawful citizen for at least the last 180 days, satisfy all other requirements to be approved citizenship, and give an undertaking that they will be ordinarily resident and present in Australia for at least 180 days in the two years after becoming an Australian citizen.

As with the general residency requirement, there are prison or psychiatric institution and administrative error discretions.

Aside from those employed in the public sector who need a certain high-level security clearance, this residency requirement is restricted to athletes who will be representing Australia in the Summer or Winter Olympics or Paralympics, the Davis or Fed Cup tennis, or international cricket series. This is strictly adhered to through a legislative instrument. They also require the head of the specific organisation to give notice that the person has a reasonable prospect of being engaged in that activity.

Why these exemptions are limited to these events and sports is proven by Quade Cooper’s previously failed applications. The requirements to be a citizen to represent Australia is likely mandatory for the Olympics, tennis and cricket, whereas rugby union does not require a representative to be Australian.

The instrument will likely be amended to include the Commonwealth Games and perhaps other sports too.

Special residency requirement – Work requiring regular travel

For non-athlete jetsetters, a special residency requirement exists if the person was engaged in the approved kind of work for at least 2 of the last 4 years before applying and they regularly travelled overseas because of this work.

Similar to the general residency requirement, they must have been ordinarily and lawfully resident in Australia for at least 4 years, the last of which they must have been a permanent visa holder. They can, however, be absent from Australia for a lot longer and only need to be in Australia for at least 480 days in the last 4 years and at least 120 days in the last year.

There are prison or psychiatric institution and administrative error discretions and also an “undertaking” discretion if they were a permanent resident for at least the last 90 days and was not an unlawful citizen for at least the last 180 days before applying, satisfy all other requirements to be approved citizenship, and has given an undertaking that they will be ordinarily resident and present in Australia for at least 180 days in the two years after becoming an Australian citizen.

The kind of work and workers for this special residency requirement is listed in the same instrument, and is limited to:

• Members of crew of a ship or aircraft,

• Workers engaged in offshore resources and sea installations,

• CEOs and Executive Managers of an S&P/ASX 200 listed company,

• Certain scientists employed by universities or other scientific institutions,

• Medical specialists internationally renowned in their field and fellows of a set number of organisations, and

• Writers or others engaged in the visual or performing arts and who are also holders, or previous holders, of a Distinguished Talent Visa.

The instrument will probably be updated to remove any reference to the need to be a writer or performer in the visual or performing arts and simply exempt Global and Distinguished Talent visa holders or former holders.

Defence service requirement

The last residency requirement is for those who were granted a visa under the following classes on or after 1 July 2007:

• Employer Nomination (Permanent) (Class EN),

• Labour Agreement (Migrant) (Class AU),

• Labour Agreement (Residence) (Class BV),

• Regional Employer Nomination (Permanent) (Class RN).

They must have undertaken a total of at least 90 days’ service, or was discharged as medically unfit, in the Australian Defence Force (Navy, Army or Air Force) or as a reservist. This exemption will also apply to relatives who were also granted this visa as being a member of the family unit of the person who undertook the defence service.

Interestingly, there is no specific requirement that these visa holders must have been granted these employer-sponsored visas nominated by any particular type of employer.

Of course, the residency requirement is just one of several requirements to be met. Satisfying identity, being of good character including not having an adverse security assessment, and in general sitting a citizenship test, and possessing a basic knowledge of English are fundamental for most. Despite representing Australia, Mr Cooper would still need to jump through these hoops too. Fingers crossed he can.