Refugee Council of Australia
Parliament House, Canberra

Submission on the Australian Citizenship Legislation Amendment (Strengthening Commitments) Bill 2018

Extension of residence requirement

People who came by boat

The Bill would amend the general residence requirement so that a person must be a permanent resident for the past eight years before becoming a citizen. Currently, a person must reside in Australia for four years and be a permanent resident for at least a year.

This will have a significant impact on people who have come by boat and are found to be refugees. The process of determining refugee status can be very prolonged, and now that time will no longer count towards residence.

The change will be especially draconian for those who are now currently only given temporary protection. Current legislation and policy would allow only a small number of these people ever to become citizens, but this change would extend this time even further. Many of these people had to wait years even to have their claims for protection heard, and will have to complete a five-year visa before becoming eligible for any kind of permanent visa.

These visas have only started to be granted in significant numbers since late 2016. This means that people in this group who may have arrived in Australia in 2012 and are granted protection in 2017 will not become eligible for permanent residence until 2022. They will now have to complete another eight years of permanent residence after that before becoming eligible for citizenship in 2030.
This means that these people could be living for 18 years in the country before they become eligible for citizenship, and for 14 of those years they cannot even visit their families overseas other than in exceptional circumstances, and under current law could not effectively reunite with them until they became citizens.

Article 34 of the Refugee Convention obliges states to ‘as far as possible facilitate the assimilation and naturalization of refugees’. It specifies that parties ‘shall in particular make every effort to expedite naturalization’. The effect of this extension does the opposite.

Victims of family violence

The extension of the permanent residence requirement is also likely to undermine the protection of victims of domestic violence. People who enter Australia temporarily on some visas, for example, may need to apply for protection within Australia. As our members have reported to us, a common experience of victims of family violence in this situation is that they have not been allowed to apply for permanent residence during this time, so requiring them to obtain permanent residence for four years may compel them to stay longer in violent relationships before they gain citizenship and feel safe to leave.

While there are provisions to protect victims of family violence in the Migration Act 1958, these apply only to people on partner visas and our members report that there are significant delays and challenges in using those provisions.

A mistaken rationale

More broadly, this requirement is counterproductive to the goal of ensuring people’s commitment to Australia. If people are already permanent residents and will spend the remainder of their life in Australia, they should be encouraged to seek citizenship as soon as practical. By demonstrating a commitment to Australia by seeking citizenship, both the individual and Australia as a nation benefits, as the aspiring citizen can truly settle into Australian society and life.

Changes to the ‘ten-year rule’

This Bill also re-introduces provisions from the Australian Citizenship and Other Legislation Amendment Bill 2014. One of these re-introduced changes is the provision to make certain people born in Australia no longer eligible to automatically acquire citizenship after ten years (the ‘ten-year rule’). The Bill would remove the benefit of this rule for children born in Australia whose parents entered without a valid visa and who did not have a substantive visa at the time of the birth, as well as children who did not have a valid visa at any time during those years.

Those mainly affected by these changes would be children born in Australia to parents found to be refugees. Under these proposed amendments, these children would be ineligible for Australian citizenship by birth, solely on the basis of their parents’ migration status. These provisions effectively penalise children who “were born in Australia, have spent their formative years here and have their established home here” because of actions over which they had no control.

As the Human Rights Commission submission to the 2014 Bill noted, these provisions breach international human rights law, which provides for the right of children to have a nationality without discrimination, including on the basis of their parent’s migration status.

Further, the changes to the ‘ten-year rule’ would permanently disenfranchise some refugee children. The re-introduction of temporary protection visas for people who came by boat seeking protection in 2014 means that many people who have been found to be refugees will never be permanent residents or, therefore, eligible for citizenship. The only exception, as noted above, will be those few who meet the restrictive criteria for the Safe Haven Enterprise Visa pathways and who also meet the criteria for another substantive permanent visa.

The change to the ‘ten-year rule’ means that children born to those holding temporary protection visas may have no other means of acquiring Australian citizenship. Passing the Bill in its current form could mean these children will never be eligible for Australian citizenship. Unable to return to the country of their parents’ origin due to fear of persecution and barred from obtaining citizenship in the country where they have lived for their entire lives, they may never have the opportunity to enjoy the rights associated with citizenship.

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