# Citizenship



## sydneyaiya1 (Jan 27, 2016)

Hi everyone,
I have a question about Australian Citizenship. Following are the dates that I've been in Australia


October 2012 : 15 days (Tourist Visa)
January 2013 : 12 days (Tourist Visa)
June 2013 : 30 days (Tourist Visa)
August 2013 : September 2013 - 25 days (Tourist Visa)
I got my TR (Spousal visa application) in October 2013, but only entered the country 2nd January 2014 which I'm thinking activated the visa
August 2014 - September 2014 : I was out of Australia for 6 weeks
December 2014 - I was out of Australia for 2 weeks
June 2015 - I was out of Australia for 5 days
I have got my PR on 10/01/2016, as I was already in the country, it has been activated.

In summery 2014 and 2015 I've been in Australia with my TR with an absence of 12 weeks within the two year period. I'm forecasting that I will be out of Australia for 2 weeks in 2016.

I know that the citizenship is for 4 years with the residence requirements. Does it also count the tourist visa ones?

Another question that I have is does the 4 year requirement mean 1460 days (365 * 4)? Or is it that you just complete 4 years without being absent for more than 12 months within the 4 years and 90 days in the last year?

Also if it is more than 12 months absence, what happens?

Kind regards,
Andrew


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## cdninoz (Jul 5, 2012)

I suggest you use the residence calculator: https://www.border.gov.au/Trav/Ente/Retu/residence-calculator

My understanding is that time spent in Australia as a tourist count as lawful residence. So you would have started your lawful residence in Australia in October 2012.

Then just enter all the times you've spent outside of Australia and any planned times and it'll tell you when/if you're eligible.


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## OzConnect (Jan 26, 2016)

sydneyaiya1 said:


> Hi everyone,
> I have a question about Australian Citizenship. Following are the dates that I've been in Australia
> 
> 
> ...


You need to have lived in Australia for at least 12 months as a permanent resident.


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## PurpleMonkeyDishwasher (Dec 14, 2014)

As a rough look at those dates, you should be eligible to apply around 10th Mar 2017.

Time as a tourist counts so you started back in 2012 but the key factors for you are you must have 12 months on a permanent visa (10 Jan 2017) and then the no more than 12 months out of the country in last 4 years, as you really only have 3 years in the country 10th Jan next year, you need to add on any time out of the country since you arrived 2nd Jan 2014.

So roughly 8 weeks after 10th Jan 2017 you will be eligible.


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## skl (Jan 20, 2016)

sydneyaiya1 said:


> Hi everyone,
> I have a question about Australian Citizenship. Following are the dates that I&#146;ve been in Australia
> 
> [*]October 2012 : 15 days (Tourist Visa)
> ...


Hi everyone! 
the only requirement is living in aus complete 4 years without being absent for more than 12 months? anything else?


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## Maggie-May24 (Jul 24, 2011)

You must have had lawful residence for 4 years. Were there gaps between the tourist visas? If so, then you wouldn't have been lawfully resident.


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## sydneyaiya1 (Jan 27, 2016)

Maggie-May24 said:


> You must have had lawful residence for 4 years. Were there gaps between the tourist visas? If so, then you wouldn't have been lawfully resident.


Yes there were gaps in between. But they should still count and the remaining time that was not spent would be added for 2017?


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## redvelvet (Oct 27, 2014)

I believe Maggie is right, it has to be immediate / consecutively.

1. have been living in Australia on a valid Australian visa for four years immediately before applying which must include the last 12 months as a permanent resident, and
2. not have been absent from Australia for more than one year in total, in the 4 year period, including no more than 90 days in the year before applying.

You already failed criterion number 2 if you start counting from 2012.


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## PurpleMonkeyDishwasher (Dec 14, 2014)

redvelvet said:


> You already failed criterion number 2 if you start counting from 2012.


Also #1 as they have only had PR for a couple of weeks, however, by this time next year the 1 year as PR will be satisfied and the no more than 12 months overseas in last 4 years will be very close - like I said earlier - around March next year (2017) they will be eligible to apply.


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## Maggie-May24 (Jul 24, 2011)

sydneyaiya1 said:


> Yes there were gaps in between. But they should still count and the remaining time that was not spent would be added for 2017?


Any gaps between visas would immediately start the clock over. They don't simply add up the periods when you did hold a visa. They look backwards from the date you apply for citizenship and during the 4 years immediately prior you must have held a valid visa, not been absent more than 12 months (and no more than 3 months in the most recent year) and have held a PR visa for at least 1 year.


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## JandE (Jul 17, 2015)

To satisfy the residence requirements you must:
Have been living in Australia on a valid Australian visa for four years immediately before applying.

This appears to say you must have a valid Australian visa covering that entire four years, whether in the country or not. Which appears right.

*How good is the Residence calculator at: *
https://www.border.gov.au/Trav/Ente/Retu/residence-calculator

Using this made up example (_based on what I would expect to be refused_):

Arrived on Tourist Visa: 01/01/2010 for say 3 months, and again 29/11/2011 to 29/01/2012
Arrived on PR visa 29/01/2013
Lodge for citizenship 29/01/2016

So: PR from 29/01/2013 to 29/01/2016 = 3 years
But first arrived lawfully 6 years ago.​Details put into the Residence calculator:

Permanent Residence Date: 29/01/2013
Lawful Residence Date: 01/01/2010
Intended Lodgement Date: 29/01/2016

Periods when you have been outside of Australia

From Date: 29/01/2012
To Date	Action: 29/01/2013​
Result:
*Residence requirement met: Yes*
Please use the results obtained from this calculator as a guide only.

It seems wrong to me...


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## Eizzi (Feb 25, 2013)

JandE said:


> Details put into the Residence calculator:
> 
> Permanent Residence Date: 29/01/2013
> Lawful Residence Date: 01/01/2010
> ...


But my understanding, using your example here, is that the lawful residence date is _not_ 01/01/10 because they were visa-less for a period of time after that. Tourist visas count but only if there are no gaps, or else it goes back to zero. So, an evisitor granted 01/01/10 would be a valid visa, regardless of them being in Aus or not, until 31/12/10. If they then got another tourist visa in 2011, the gap between the first visa and the second would not count because they were not lawfully resident. It would only count if they, for example, got a WHV before 31/12/10.

The 4 years starts in 2012. They are only lawfully resident in your example from 29/01/13.


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## lightningx (Dec 4, 2015)

JandE said:


> It seems wrong to me...


Or the calculator could be right and our reading of the requirements is incorrect.

I think there're 2 main issues here:

1) Time on temporary visa like tourist visa. Is this time counted?

2) And any absence or gaps away from Australia without a visa, is that considered unlawful and therefore resets the clock?

For 1), my reading of the requirements is a Yes. Time in temporary visas is counted.

For 2), this is a bit contentious and ambiguous. According to Mark's post (see below), DIBP is concerned with being legally present rather than establishing residence. So gaps or absence does not affect as long as they do not exceed 12 month. The clock continues counting.

Mark sums it up very succinctly in his post:
wwwaustraliaforumcom/142330-post13.html


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## Eizzi (Feb 25, 2013)

lightningx said:


> Or the calculator could be right and our reading of the requirements is incorrect.
> 
> I think there're 2 main issues here:
> 
> ...


Ah ok then. Thanks for pointing us towards Marks post. So even time without a visa counts, as long as the total time overseas doesn't go over the limits. Hmm.


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## JandE (Jul 17, 2015)

lightningx said:


> Or our reading of the requirements is incorrect.


That's what I am wondering...

In my example, a person might *think *they are OK from 01/01/2010 as they were legal then... They had a legal visa... And people say Tourist Visas are OK too.

Is the calculator clear enough in what it wants ?

Or is it actually correct ?


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## lightningx (Dec 4, 2015)

JandE said:


> That's what I am wondering...
> 
> In my example, a person might *think *they are OK from 01/01/2010 as they were legal then... They had a legal visa... And people say Tourist Visas are OK too.
> 
> ...


I'd think the calculator is clear enough and is actually correct and will probably fulfill 100 % of the lawful cases.

The only thing the calculator cannot do is to determine whether one is lawful for not, since no passport details are required from the calculator when using it. The premise is it assumes one is lawful.

The rest is just numbers crunching to determine whether applicants meet the not more than 1 year absent rule, 1 year PR rule and not more than 3 month absent in the 1 year PR rule and the 4 years" residence" rule and those that can be done with 100 % mathematical certainty. These can be done by a machine with much better accuracy than a human being.


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## JandE (Jul 17, 2015)

lightningx said:


> The premise is it assumes one is lawful.


And that appears to be the question that many people wonder about, and are not certain about.


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## sydneyaiya1 (Jan 27, 2016)

Eizzi said:


> Ah ok then. Thanks for pointing us towards Marks post. So even time without a visa counts, as long as the total time overseas doesn't go over the limits. Hmm.


What happens if the time overseas goes over? Do we need to catch up the time?


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## JandE (Jul 17, 2015)

sydneyaiya1 said:


> What happens if the time overseas goes over? Do we need to catch up the time?


You need to wait, before applying, until the time outside Australia is under the limit.


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## lightningx (Dec 4, 2015)

sydneyaiya1 said:


> What happens if the time overseas goes over? Do we need to catch up the time?


The simple answer is "yes". Simplistically, your eligible application date will be delayed by the amount of time you have exceeded but is not always true for long period of absence.

If you look into it in more details there could be the possible scenerios

1) If you exceed a total of 12 months overseas
2) If you exceed 90 day out of 12 months prior to application

Depending on how much you exceed and which or both of the above you exceed. If you exceed by 2-3 years for example, it'll be a total reset.

Let's just assume you're lawful and key in all the dates in the calculator. It'll give you a pretty accurate idea. And then change dates to the dates where you'll exceed. And followed through it by calling the citizenship hotline to verify you're truly lawful.


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## sydneyaiya1 (Jan 27, 2016)

lightningx said:


> The simple answer is "yes". Simplistically, your eligible application date will be delayed by the amount of time you have exceeded but is not always true for long period of absence.
> 
> If you look into it in more details there could be the possible scenerios
> 
> ...


So with my tourist visa arrivals - there have been breaks in between, is this an issue?


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## JandE (Jul 17, 2015)

sydneyaiya1 said:


> So with my tourist visa arrivals - there have been breaks in between, is this an issue?


It seems to say that you must have held valid visas for the full last 4 years. But not necessarily have been in the country for the full 4. But at least 3.

I think.


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## lightningx (Dec 4, 2015)

sydneyaiya1 said:


> So with my tourist visa arrivals - there have been breaks in between, is this an issue?


I'd say not an issue.

But time and time again, this ambiguous issue pops up. Below is another discussion thread with an anecdote of someone who applied and had a break in tourist visa and did not have any issues.

http://www.australiaforum.com/visas-immigration/100778-citizenship-residency-requirement.html

Again just my opinion again: This is not an issue.

If you're going to be affected by it and cutting it close, do a survey of the literature surrounding this issue particularly discussion around this and other forums. And check with the DIBP citizenship people, a few times from different ones if necessary.


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## JandE (Jul 17, 2015)

Using this example:

In Australia on Visitor Visa: 10 Nov 2012 to 5 Feb 2013
Outside Australia for 8 months *with NO valid Visa*
In Australia on Visitor Visa: 6 Oct 2013 to 1 April 2014
Outside Australia for 4 days but *with valid Visitor Visa*.
In Australia on PMV from 5 April 2014 to 20 July 2014
In Australia with 820 application lodged from 20 July 2014. 
With continuous stay therefore from 5 April 2014 to 2016

When would the lawful date be?
and
Would the Citizenship eligibility date be 4 years from 6 Oct 2013 ?
or 4 years from 10 Nov 2012 ?


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## PurpleMonkeyDishwasher (Dec 14, 2014)

You don't need a valid visa when you are outside Australia.

I am an NZ citizen.

I hold a 444 SCV when I am in Australia, that ceases when I leave Aus and new visa issued next time I arrive.

When I checked at the Citizenship office the lady called me up on the computer and told me the exact date I would be eligible, including visa less time outside Australia.


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## lightningx (Dec 4, 2015)

JandE said:


> Using this example:
> 
> In Australia on Visitor Visa: 10 Nov 2012 to 5 Feb 2013
> Outside Australia for 8 months *with NO valid Visa*
> ...


If you subscribe to a break means reset clock, lawful date is 6 Oct 2013.

But I think in all likelihood, lawful date will be 10 Nov 2012.

Again it's ambiguous, but based on my understanding and researching of this whole issue, I strongly believe it's 10 Nov 2012.


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## JandE (Jul 17, 2015)

PurpleMonkeyDishwasher said:


> You don't need a valid visa when you are outside Australia.


But is a valid visa needed for computing the 4 years for citizenship?


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## JandE (Jul 17, 2015)

lightningx said:


> If you subscribe to a break means reset clock, lawful date is 6 Oct 2013.
> 
> But I think in all likelihood, lawful date will be 10 Nov 2012.
> 
> Again it's ambiguous, but based on my understanding and researching of this whole issue, I strongly believe it's 10 Nov 2012.


That would be good, better than expected  I was thinking 6 Oct 2013 based on the wording:
_To satisfy the residence requirements you must:
have been living in Australia on a valid Australian visa for four years immediately before applying_​


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## lightningx (Dec 4, 2015)

JandE said:


> But is a valid visa needed for computing the 4 years for citizenship?


Yes minimally and I think sufficiently, a valid visa is needed for all periods of presence in Australia for 4 years, in addition, a valid PR visa is also needed for 12 months prior to application. This will fulfill the lawful stay requirement.

I think a valid visa is not needed when one is not present in Australia. Again this point is debatable yeah.


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## lightningx (Dec 4, 2015)

JandE said:


> That would be good, better than expected  I was thinking 6 Oct 2013 based on the wording:
> _To satisfy the residence requirements you must:
> have been living in Australia on a valid Australian visa for four years immediately before applying_​


Yeah it's ambiguous. Reading the above again from another angle, living in Australia on a valid Australian visa for four years does not necessarily mean one needs a valid Australia visa when outside Australia. I think minimally, it means when in Australia, one needs a valid Australian visa. Argh, my brain is cracking.


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## JandE (Jul 17, 2015)

lightningx said:


> a valid visa is needed for all periods of presence in Australia for 4 years,


So, if a Valid Visa is needed to cover the full 4 years. This makes my example above 6 Oct 2013 to 6 Oct 2017, the only (or first) 4 year period that is fully covered by a Valid Visa.
From 5 Feb 2013 to 6 Oct 2013 there was no visa, therefore no possibility of being treated as resident for that period.


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## lightningx (Dec 4, 2015)

JandE said:


> So, if a Valid Visa is needed to cover the full 4 years. This makes my example above 6 Oct 2013 to 6 Oct 2017, the only (or first) 4 year period that is fully covered by a Valid Visa.
> From 5 Feb 2013 to 6 Oct 2013 there was no visa, therefore no possibility of being treated as resident for that period.


Again, there is no need to the visa to cover full 4 years. Only for periods of presence in Australia during the 4 years. And again there's no strict need to be treated as resident during the 4 years. Mark's post which I mentioned earlier said it clearly when he distinguished between "resident" and legally present and what DIBP expects.


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## JandE (Jul 17, 2015)

It sure is an interesting topic.

Marks post refers to:
_AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 22

1 (a)

the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

1A (a)
If: (a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence._​
Which basically says that during the time of absence between visitor visas, and with no valid visa for Australia for that time, Immigration will still treat that time as "_for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence_"

The law is sometimes very confusing 

I still feel very wary...


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## JandE (Jul 17, 2015)

Then there is this wording that I came across:

_Requirement: You must have held a valid Australian visa for four years immediately before applying, including one year as a permanent resident immediately before applying._​


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## sydneyaiya1 (Jan 27, 2016)

I guess there is no conclusion yet?


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## Lilia (Jun 12, 2013)

Hi guys,

Looks like nobody knows anything for sure. To make things even more confusing, I called DIAC today and they told me that the time spent outside Australia without valid Australian visa does not count towards the 4 years residency requirement. However, they confirmed that staying in AU on a visitor visa does count.

My situation is:

Entered Australia on a visitor visa (subclass 676) 30 October 2012 and stayed here until 28 April 2013.
Entered Australia again on 16 April 2014 as a permanent resident. I was granted permanent residency offshore straight away (subclass 100) without any bridging visa because my husband and I have been married for many years prior to moving to Australia but it apparently does not change anything when it comes to applying for the citizenship (in case someone thinks it does).
Dates of absence from Australia after that:
14/6/14 - 20/6/14
26/5/15 - 03/6/15
9/4/16 - 25/4/16
19/1/17 - 25/1/17

When I enter all these details into the residency calculator, it comes up with 17 May 2017 as the date I am eligible to apply for the citizenship. However, the calculator does not ask you to specify if you have been overseas with or without a valid Australian visa. I have also noticed that the calculator does not reset the clock if you have been overseas for more than 12 months but pushes the date towards that day when you have been in Australia for 3 years plus 12 months of absence. It also does not include dates of departure and arrival but only counts full days outside Australia.

The customer service representative from DIAC did not look me up on the computer or asked for how long I have been absent from Australia during 4 years prior to applying for the citizenship but cut me off by saying that since I have been outside Australia without any valid visa, the time spent in Australia on the visitor visa prior to that cannot be used for nothing and I am not eligible to apply until 16 April 2018. He also told me that if I had obtained some kind of Ausstralian visa before departing overseas, it would have counted but otherwise not.

I have heard/read very mixed opinions about this and would very much like to hear from someone who has been in a similar situation and actually got time spent overseas without any valid visa counted towards the residency in Australia. Did anyone else call DIAC and got any other answer about this? Or maybe it would be worth calling them again to get a second opinion from another customer service representative?


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## JandE (Jul 17, 2015)

I would assume that when they say "_You must have held a valid Australian visa for four years immediately before applying_" that they mean continuous holding of a valid visa for 4 years before application.


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## lightningx (Dec 4, 2015)

Lilia said:


> Hi guys,
> 
> Looks like nobody knows anything for sure. To make things even more confusing, I called DIAC today and they told me that the time spent outside Australia without valid Australian visa does not count towards the 4 years residency requirement. However, they confirmed that staying in AU on a visitor visa does count.
> 
> ...


Happy new year to all!

My wife got her citizenship approved last year. She had a break in overseas without a valid visa and was on ETA in between. There was no clock reset i.e the time on tourist is counted as present in Australia + time overseas is counted as 4 years + no clock reset.

Respectfully, the person you spoke to got it wrong, which is not that unusual because the call operator may not always be knowledgeable. The legislation Citizenship Act 2007, Section 21, 1A) and 1B). is very clear about how period of overseas absence and presence in Australia is to be treated. It goes to say period of absence are taken to be present in Australia, something which is crystal clear (no reset instead taken as present in country).

I'll say don't wait. Just go for it when the residence calculator says so. As long as you're not unlawful in Australia, you're good to go.

I'm applying for citizenship in a month. I also have a break of overseas absence without visa. But I've not been unlawful. So I took a good look a the Citizenship Act just to make sure I'm covered and I can take it further should it be disputed.

Good luck.

PS.
http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s22.html
In case you are keen:

Let's have a look at legislation.
General residence requirement

(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

(c) 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 only way you can meet the above ideal requirement is to not leave the country for a single day in the 4 years, which is not practical. So there's a provision 1A and 1B for overseas absences. Also person must not be present in Australia unlawfully, ie. Valid visa.

Let's look at 
Overseas absences

(1A) If:

(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

(b) the total period of the absence or absences was not more than 12 months;

then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

(1B) If:

(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

(b) the total period of the absence or absences was not more than 90 days; and

(c) the person was a permanent resident during each period of absence;

then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

If you examine 1A and 1B carefully, periods of absence are treated as present in Australia provided you do not exceed 12 months in 4 years (1A) and 90 days in last 1 year as PR (1B). With that treatment of absence -> present, the ideal general residence requirement (1) is fulfilled. That's a far cry from a clock reset!

Look a the above 1A and 1B and 1, there are nine points, if you fulfill all nine, you are good.

Unfortunately, DIBP has chosen to distill the above 9 points with a wording of 4 years continuous stay in Australia with valid visa which sounds more like the ideal residence requirements (1) without the overseas absences provision. (1A and 1B). However, the statement if read in a larger context of other statements may still make sense, but read on its own, is ambiguous.


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## Lilia (Jun 12, 2013)

lightningx said:


> Happy new year to all!
> 
> My wife got her citizenship approved last year. She had a break in overseas without a valid visa and was on ETA in between. There was no clock reset i.e the time on tourist is counted as present in Australia + time overseas is counted as 4 years + no clock reset.
> 
> ...


Thanks for your post. I also have a feeling that there might not be the most knowledgeable people sitting in a call centre in DIBP. I heave heard from other people that you can get different answers for the same question depending on whom you talk to.

If you don't mind me asking....for how long did your wife stay overseas without a valid visa that was counted towards the time spent in AU?


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## lightningx (Dec 4, 2015)

Lilia said:


> Thanks for your post. I also have a feeling that there might not be the most knowledgeable people sitting in a call centre in DIBP. I heave heard from other people that you can get different answers for the same question depending on whom you talk to.
> 
> If you don't mind me asking....for how long did your wife stay overseas without a valid visa that was counted towards the time spent in AU?


She stayed overseas for about 3 weeks. Again the amount of time is inconsequential since it's nowhere close to hitting the 12 months in 4 years and 90 days in last 1 year as PR. It may become consequential only at the margins of the requirement. In that case 12 months is how many days? And are days of departure and arrival counted? I think it's quite safe to consider 12 months as 30*12 days and count the day of arrival and departure as 2 days in Australia. The calculator does not take departure and arrival as 2 days though.

Again, when we say time overseas is counted, the legislation treats the absence is as if present in Australia and count it toward the 4 years present -- as if no absence at all. That is of course in addition to time spent lawfully in Australia. Any distinction between time overseas without a valid Australia visa, vs time overseas with a valid visa vs counting only those time when leaving Australia with a valid Australia Visa, those are artificial distinctions. The legislation does not make those distinctions. It's only concerned with the lawfulness of one stay in Australia.


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## Lilia (Jun 12, 2013)

lightningx said:


> She stayed overseas for about 3 weeks. Again the amount of time is inconsequential since it's nowhere close to hitting the 12 months in 4 years and 90 days in last 1 year as PR. It may become consequential only at the margins of the requirement. In that case 12 months is how many days? And are days of departure and arrival counted? I think it's quite safe to consider 12 months as 30*12 days and count the day of arrival and departure as 2 days in Australia. The calculator does not take departure and arrival as 2 days though.
> 
> Again, when we say time overseas is counted, the legislation treats the absence is as if present in Australia and count it toward the 4 years present -- as if no absence at all. That is of course in addition to time spent lawfully in Australia. Any distinction between time overseas without a valid Australia visa, vs time overseas with a valid visa vs counting only those time when leaving Australia with a valid Australia Visa, those are artificial distinctions. The legislation does not make those distinctions. It's only concerned with the lawfulness of one stay in Australia.


3 weeks in your wife case is nothing. I have been outside for 11,5 months after staying in Australia for 6 months on a visitor visa, and been absent now and then for shorter holidays after I came back as a permanent resident. So if I had not been absent from AU for that long, I guess I would have been eligible to apply for the citizenship already in October 2016. But since I have been absent for more than 12 months (but not more than 3 months during the last year), the calculator pushed the application date towards 17 may 2017. I am just worried about that long break overseas as I am still not sure it would be counted towards the time spent in Australia and would very much hope that calculator is right))


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## PurpleMonkeyDishwasher (Dec 14, 2014)

Lilia said:


> But since I have been absent for more than 12 months (but not more than 3 months during the last year), the calculator pushed the application date towards 17 may 2017. I am just worried about that long break overseas as I am still not sure it would be counted towards the time spent in Australia and would very much hope that calculator is right))


From my understanding the requirement for holding a valid visa is when you are actually in the country.

Whilst my case is slightly different as a Kiwi, I do not hold an Australian Visa while I am outside Australia. I hold a SCV444 while in Australia but that ceases as soon as I depart.

My citizenship application was approved with 12 months outside Australia with no valid visa during those times.

You eligible date looks right, easiest way to work it out, start from today and count back through your time overseas - when you hit 52 weeks your eligible date is 3 years from then.

Your 52nd week outside Australia counting back (365th day) will be 17 may 2014.


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## Lilia (Jun 12, 2013)

PurpleMonkeyDishwasher said:


> From my understanding the requirement for holding a valid visa is when you are actually in the country.
> 
> Whilst my case is slightly different as a Kiwi, I do not hold an Australian Visa while I am outside Australia. I hold a SCV444 while in Australia but that ceases as soon as I depart.
> 
> ...


Thanks a lot for your opinion. Glad to hear you also think that the date suggested by the calculator might be correct.

However, I would not use your situation as an example since you are from NZ and due to different agreements between AU and NZ, things normally go easier for the NZ citizens (which is good).

But I am thinking, if I decide to apply on the date suggested by the calculator without being sure about that long overseas break being counted towards the time spent in Australia, would I lose anything apart from something $300 fee if my application gets rejected? Anyway hiring any lawyers would cost more))


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## lightningx (Dec 4, 2015)

Lilia said:


> 3 weeks in your wife case is nothing. I have been outside for 11,5 months after staying in Australia for 6 months on a visitor visa, and been absent now and then for shorter holidays after I came back as a permanent resident. So if I had not been absent from AU for that long, I guess I would have been eligible to apply for the citizenship already in October 2016. But since I have been absent for more than 12 months (but not more than 3 months during the last year), the calculator pushed the application date towards 17 may 2017. I am just worried about that long break overseas as I am still not sure it would be counted towards the time spent in Australia and would very much hope that calculator is right))


Hmmm, your case is more complicated with the 11.5 absence. I just took a look at your case more closely again, I've a bad feeling that 17 May 2017 will not be your eligibility date. The reason is simple, if you backtrack 4 years, it'll be 17 May 2013. The big problem is you were not in Australia at that time. So the start date becomes contentious. But you say you have been in Australia prior to that on tourist visa right? The way I understand it for 17 May 2013 to be a valid start date, you will need a valid Australia visa in order to take that supposed date as a start date. And but you didn't. So the clock cannot start counting yet. If you were away for say 10 months instead of 11.5, your start date could be sometime like before April 28th 2013 will be while you're still onshore and therefore all your time away without any visa could still be counted.

I'm sorry to say you'll probably be eligible only 16 April 2018.Anytime before that, your 4 year clock does not start. My bad for raising your hopes. The DIBP officer might be right after all in your case.

If you read citizenship policy pdf document, just google acis-may 2012.pdf page 47, I'll quote it below. It says in a very dense manner as a matter of policy, for the case that applies to you. The example given is instructive. I have underlined the very dense and important portion.

"Where a person was outside Australia on the day 4 years immediately before applying, but had previously been in Australia, they may still use the day 4-years immediately before applying as a start date (for the purposes of being eligible to satisfy the 4 year lawful requirement), providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa).
If these conditions are met, then the person may use the full 4 year period immediately before applying towards meeting the general residence requirement.
For the purposes of the residence calculator, the lawful residence date will be the date that the 'in effect visa' that was held 'on the day 4 years immediately prior to the day of application' came into effect. Refer to the relevant procedural documents for further information on using the residence calculator.

Example
Mr Smith entered Australia on 01/01/2004 on a subclass 457 visa. He departs a week later, and reenters on 01/01/2006 on the same subclass 457 visa. He remains in Australia, becomes a permanent resident on 01/01/2008 and applies for citizenship on 01/01/2009.
Mr Smith's 4-year lawful period starts on 01/01/2005 (4 years before applying) because although he was outside Australia on this date, he was previously in Australia and was still the holder s/c 457
visa."


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## lightningx (Dec 4, 2015)

Lilia said:


> But I am thinking, if I decide to apply on the date suggested by the calculator without being sure about that long overseas break being counted towards the time spent in Australia, would I lose anything apart from something $300 fee if my application gets rejected? Anyway hiring any lawyers would cost more))


Nope just $300 dollars, and time spent to get those documents up.


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## Lilia (Jun 12, 2013)

lightningx said:


> Hmmm, your case is more complicated with the 11.5 absence. I just took a look at your case more closely again, I've a bad feeling that 17 May 2017 will not be your eligibility date. The reason is simple, if you backtrack 4 years, it'll be 17 May 2013. The big problem is you were not in Australia at that time. So the start date becomes contentious. But you say you have been in Australia prior to that on tourist visa right? The way I understand it for 17 May 2013 to be a valid start date, you will need a valid Australia visa in order to take that supposed date as a start date. And but you didn't. So the clock cannot start counting yet. If you were away for say 10 months instead of 11.5, your start date could be sometime like before April 28th 2013 will be while you're still onshore and therefore all your time away without any visa could still be counted.
> 
> I'm sorry to say you'll probably be eligible only 16 April 2018.Anytime before that, your 4 year clock does not start. My bad for raising your hopes. The DIBP officer might be right after all in your case.
> 
> ...


Well no, it does not look good in my case. The problem about that confusing calculator is that it does not "know" if you had a valid visa while overseas or not, and in my case it put a start date while I was overseas without any valid visa compared to that Mr Smith example


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## Lilia (Jun 12, 2013)

lightningx said:


> Nope just $300 dollars, and time spent to get those documents up.


I have all the docs, no problem, but would be a pity to waste $300)


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## lightningx (Dec 4, 2015)

Lilia said:


> I have all the docs, no problem, but would be a pity to waste $300)


If your partner happens to be with you in that 11.5 months away and is an Australian, that time may still be counted. Think you'll nee a ministerial exemption for that.


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## Lilia (Jun 12, 2013)

lightningx said:


> Hmmm, your case is more complicated with the 11.5 absence. I just took a look at your case more closely again, I've a bad feeling that 17 May 2017 will not be your eligibility date. The reason is simple, if you backtrack 4 years, it'll be 17 May 2013. The big problem is you were not in Australia at that time. So the start date becomes contentious. But you say you have been in Australia prior to that on tourist visa right? The way I understand it for 17 May 2013 to be a valid start date, you will need a valid Australia visa in order to take that supposed date as a start date. And but you didn't. So the clock cannot start counting yet. If you were away for say 10 months instead of 11.5, your start date could be sometime like before April 28th 2013 will be while you're still onshore and therefore all your time away without any visa could still be counted.
> 
> I'm sorry to say you'll probably be eligible only 16 April 2018.Anytime before that, your 4 year clock does not start. My bad for raising your hopes. The DIBP officer might be right after all in your case.
> 
> ...


Actually, I came to remember something. That visitor visa I had subclass 676 was valid from 30 August 2012 til 30 August 2013 and I could enter Australia multiple times on this visa staying in AU for 6 months each time within that time frame. I have been on this visa in AU from 30 October 2012 til 28 April 2013. Technically, I could still enter AU on 17 May 2013 BUT I submitted an offshore spouse visa application on 5 May 2013 through embassy in Berlin and I think I have seen somewhere that once you submit application for one visa, all your previous visas ceases. Does it sound correct?


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## lightningx (Dec 4, 2015)

Lilia said:


> Actually, I came to remember something. That visitor visa I had subclass 676 was valid from 30 August 2012 til 30 August 2013 and I could enter Australia multiple times on this visa staying in AU for 6 months each time within that time frame. I have been on this visa in AU from 30 October 2012 til 28 April 2013. Technically, I could still enter AU on 17 May 2013 BUT I submitted an offshore spouse visa application on 5 May 2013 through embassy in Berlin and I think I have seen somewhere that once you submit application for one visa, all your previous visas ceases. Does it sound correct?


2 issues here:

1) I think making an offshore visa application does not cancel your current visa. I think a visa only get cancelled if a new visa is issued or existing one expires. In your case, you only made an application and no visa was granted in the interim.

2) Technically you could still enter on 676, but that does not mean you had a visa in-effect, just a potentially have one. Think you only have an in-effect visa only when you enter. I'm using the language in relation to the policy document, specially to the in-effect visa. So nope, I think it'll not be counted as start date. 

I'm no agent, just a layman who tries to execise my brain a bit more. Take it with a pinch of salt.


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## JandE (Jul 17, 2015)

Lilia said:


> I think I have seen somewhere that once you submit application for one visa, all your previous visas ceases. Does it sound correct?


I am sure the existing visa would stay valid until the next visa is granted. Otherwise, with no valid visa, during the wait for approval, you might be deported?


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## Lilia (Jun 12, 2013)

lightningx said:


> 2 issues here:
> 
> 1) I think making an offshore visa application does not cancel your current visa. I think a visa only get cancelled if a new visa is issued or existing one expires. In your case, you only made an application and no visa was granted in the interim.
> 
> ...


Please let me know if you find any information about visa being ceased or not ceased if you apply for a different visa.

Re number 2, I copied this from that visitor visa: "Period for which the visa is to remain in effect

The Subclass 676 Tourist visa allows the visa holder to travel to and enter Australia on more than 1 occasion until 31 August 2013. The visa holder is permitted to remain in Australia, after each entry, for a period of 6 Months."

You must be referring to the following rules about visa being in effect "If you were granted a permanent residence visa onshore your permanent residence date is the date that visa was issued.

If you were granted a migrant visa offshore your permanent residence date is your date of first arrival in Australia on this visa.". However, the visitor visa is not a migrant visa. So i think it might still be valid if it had not been ceased by my offshore spouse visa application.


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## Lilia (Jun 12, 2013)

lightningx said:


> If your partner happens to be with you in that 11.5 months away and is an Australian, that time may still be counted. Think you'll nee a ministerial exemption for that.


No, my husband was in Australia, I was in Denmark with our daughter (who is AU citizen as well) but I don't think it changes anything.


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## Lilia (Jun 12, 2013)

JandE said:


> I am sure the existing visa would stay valid until the next visa is granted. Otherwise, with no valid visa, during the wait for approval, you might be deported?


I was offshore. My case is different and seems to be complicated)


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## lightningx (Dec 4, 2015)

Lilia said:


> Please let me know if you find any information about visa being ceased or not ceased if you apply for a different visa.
> 
> Re number 2, I copied this from that visitor visa: "Period for which the visa is to remain in effect
> 
> ...


Were you told the visa was cancelled or replaced with any new visa? If not, your visa 676 remains

The policy does not just apply to migrant visa, I quote again the portion "providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa)."

It applies to the example of non-migrant temporary visa sc 457 used in the same policy document.

The issue now is for your 676, you are allowed to make multiple trips for a year. When you came in, your 676 visa officially came into effect. When you left in late April, was the visa still in effect? For migrant and other kinds of visa like temporary visa 457, it's straightforward, they are still in effect even after one leaves the country. For 676? If the answer is yes, then you're good to go as May 17 2013 as start date. If not sure or grey, you may still have a fighting chance to claim that the visa was already in effect and still was in effect in May 17 2013. 

But this new piece of 676 knowledge certainly increases your chance to at least try for $300 and even lodge an appeal with your lawyers if it's rejected.  I think there isn't a strict legislative guideline on this, so you've a good chance.


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## Lilia (Jun 12, 2013)

lightningx said:


> Were you told the visa was cancelled or replaced with any new visa? If not, your visa 676 remains
> 
> The policy does not just apply to migrant visa, I quote again the portion "providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa)."
> 
> ...


No, nobody told me that my visitor visa was cancelled.

It only says that the visa is in effect between 31 August 2012 and 31 August 2013, it does not say anything about being in effect only while in Australia. So maybe I could still gamble in May this year for $300))


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## Lilia (Jun 12, 2013)

Just found the updated version of acis-june-2016 page 92. 
"Where a person was outside Australia on the day four years immediately before applying, but had
previously been in Australia as the holder of a permanent visa, they may still use the day four years
immediately before applying as a start date (for the purposes of being eligible to satisfy the four year
lawful requirement), providing that on that day they held a permanent visa."

They changed the requirements to a permanent visa prior to you absence from Australia which I did not have. So no matter how I twist it around, does not look like I am eligible until Aptir 2018. No more speculations.


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## lightningx (Dec 4, 2015)

Lilia said:


> Just found the updated version of acis-june-2016 page 92.
> "Where a person was outside Australia on the day four years immediately before applying, but had
> previously been in Australia as the holder of a permanent visa, they may still use the day four years
> immediately before applying as a start date (for the purposes of being eligible to satisfy the four year
> ...


wtf! i'm sorry to hear that. That's a big change. You're right. Think you'll have to wait until next year.  But Australia is a great place to be in, and worth waiting for another 15 months. 

This policy change means those whose start date occurs when overseas need to be PR. Effectively disqualifying those non-PRs who will need to carefully plan their departures.


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## Lilia (Jun 12, 2013)

lightningx said:


> wtf! i'm sorry to hear that. That's a big change. You're right. Think you'll have to wait until next year.  But Australia is a great place to be in, and worth waiting for another 15 months.
> 
> This policy change means those whose start date occurs when overseas need to be PR. Effectively disqualifying those non-PRs who will need to carefully plan their departures.


Yes, it's a very crappy change they've made( But thanks for discussing all this with me, together we have found the answer for my complicated situation. You mentioned that acis document, I happened to find the updated version and hopefully this info will assist other people in a similar situation.


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## CPMaverick (Apr 7, 2010)

Hi All-

I have a very simple question (hopefully!) about the calculation for 'Time away from Australia'. The online calculator doesn't seem to be working and hasn't been since April, so I'm appealing to those that may have used it in the past and can answer this question. 

How are your days away from Australia calculated? Does your departure day count as fully inside Australia? Does your arrival day count as fully inside Australia? 

For example, if I leave Australia on the 25th and return on the 29th at the same time, then technically I've been outside Australia for 4 days (in terms of hours). However, 5 calendar days have passed without me being fully within Australia. And I've only spent 3 full calendar days outside Australia. So according to the government citizenship calculator, have I been outside Australia for 3,4, or 5 days? I would think 3 days (26-27-28), but I am trying not to assume too much, as I know what that can lead to especially with the government...

I ask because I travel overseas a lot for work but am trying to keep my time away calculated so I can apply for citizenship. Because I have multiple trips, 1 day each trip could be enough to push me over the 12 months over 4 years. 

Cheers


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## CPMaverick (Apr 7, 2010)

For what it is worth, Canada has a Citizenship calculator that is working. It only counts full calendar days away from Canada. So that is the most optimistic scenario. I'd love to know if Australia is just as optimistic!


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## andrewjames (Nov 30, 2017)

My understanding is that a partial day in Australia counts as a day of presence for the purposes of calculating your citizenship qualification days.


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## CPMaverick (Apr 7, 2010)

andrewjames said:


> My understanding is that a partial day in Australia counts as a day of presence for the purposes of calculating your citizenship qualification days.


Thank you for the response.

The citizenship calculator is back up, and it agrees with this. Since I have made a couple dozen trips outside Australia in the last 2 years, it makes my life a lot easier!

If you leave Australia and return the same day, it counts as zero days gone from Australia.


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## lightningx (Dec 4, 2015)

CPMaverick said:


> Thank you for the response.
> 
> If you leave Australia and return the same day, it counts as zero days gone from Australia.


I think if we leave Australia on Day 1 and return to Australia on Day 2, it still counts as zero days gone. And I think for the purposes of being in Australia, it's the local time from whatever port of departure and arrival.

The arrival date also follows the same principle, I think.


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