A member asked almost 8 years ago

Eligibility to apply for an exemption to the residence requirements

I have been a lawful resident of Australia from 28 March 2013 to do my PhD in an Australian University. During the last 3 years, I was living for 14 months outside Australia (Feb-March 2014, and Aug 9 2015- Aug 11 2016). My 2nd stay abroad was related to my PhD project in Australia. I am living in Australia on a student visa.

I want to apply for Permanent Residency during the coming December. Then for applying for citizenship, I was wondering if they ignore this one year absence.

My question: Am I eligible to apply for an exemption to the residence requirements or am I eligible under the special residence requirement? My absence was a part of my PhD work but I had to travel USA.

Law Advisor Research Team
Researchers at LawAdvisor

Hi there. We have assumed that you are planning to apply for Australian citizenship as a general resident. This would require you to be present in Australia for 4 years immediately before the date of application. Overseas absences within this time will be overlooked if they do not exceed 12 months. From the information you provided, it appears that, since arriving in March 2013, you have spent a total of more than 12 months outside Australia. It is unlikely the Immigration Department will ignore these absences.

You asked whether it is possible to claim a special exemption because your second absence from Australia was related to your PhD research. Under general residence applications, there is no special exemption for educational activities. Some discretionary exemptions may be granted by the Immigration Department in very specific situations, but the information you have provided does not suggest that you would be eligible for these exemptions.

If you decide to apply for citizenship anyway and are officially denied, you can have the decision reviewed by the Administrative Appeals Tribunal. Guidelines about eligibility for a review, where and when to lodge the application will be contained in the refusal letter you receive.

Although you will have the right to review an adverse decision by the Immigration Department, you will need to consider the practicalities of appealing the decision. The process is very slow (e.g. reviews of Australian citizenships applications currently take approximately 300 days before a court hearing date is set) and expensive (a fee of $1,673).

Alternatively, you have the option of waiting 3 years from the date you last arrived back in Australia before applying for permanent residency. You would need to not leave Australia during this 3 year period to be eligible for citizenship. The Residence Calculator is an easy tool to check when you next qualify for citizenship, which can be viewed at www.border.gov.au/Trav/Ente/Retu/residence-calculator.

Suggested way forward

For more information, you could make a direct enquiry with the Department of Immigration and Border Protection (www.border.gov.au/about/contact/make-enquiry). Immigration and citizenship laws are complicated, so it may be worth speaking to a lawyer who can advise you about your full legal position and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Answered almost 8 years ago   Legal disclaimer

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