Background to citizenship in Australia
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Citizenship in Australia is determined under the Australian Citizenship Act 2007, which provides that citizenship can be obtained automatically or through application. Citizenship by application is available by decent, adoption, resumption or conferral.
Australia does not automatically grant a person born in Australia citizenship. A person is only granted Australian citizenship upon birth in Australia, if one parent of the child is an Australian citizen or permanent resident at the time of the birth. Otherwise, a child is automatically granted citizenship after residing in Australia for ten years.
Citizenship by conferral is the largest component of the citizenship by application program, and is the only pathway for refugees and humanitarian entrants to gain citizenship.
Citizenship by conferral is available to permanent residents who have lawfully resided in Australia for four years, with at least the last 12 months on a permanent visa. As such, people found to be refugees have to wait at least four years until they can apply to become an Australian citizen. In addition, time in Australia without a valid visa (primarily affecting those who arrive by boat) is not considered part of the four-year requirement.
The process for citizenship application involves (for a comprehensive outline see Appendix A):
- The application stage, in which the applicant lodges an application and DIBP assesses the application and considers if the application meets identity and other requirements
- Citizenship test (in most cases), in which the applicant sits a test in English. Applicants who fail are able to re-sit the test
- A decision is made to grant or deny citizenship, and the Minister for Immigration sends a letter to the applicant stating that they have been approved for citizenship
- The applicant is invited to a citizenship ceremony, which are usually held every month by local councils. The applicant makes a pledge of citizenship in front of an approved person, usually at a Citizenship Ceremony.
However, it is not a legal requirement for the applicant to make a pledge at a ceremony. In the 2015 case of Grass v Minister for Immigration and Border Protection, the Federal Court noted:
As will appear from the Act, and the Regulations, once an applicant has an approval of her citizenship, the only remaining step is to take the pledge of commitment before a person authorised to take that pledge. This can be done at any time, and need not occur at any particular kind of function or ceremony. Despite this, the administrative practice of the Department of Immigration and Border Protection and of the Department of Immigration and Citizenship (as it then was) is to arrange for “citizenship ceremonies” to be held in various locations around the country, and for persons with approvals to take the pledge at such ceremonies. It is the existence of this practice, together with the fact that the appellant believed she had to wait for such a ceremony, which led to the unfortunate sequence of events underlying this appeal.
Indeed, s 27(3) of the Citizenship Act provides that the pledge must be made before the Minster or an authorised person or class of persons. Further, the Regulations provide that ‘the pledge of commitment must be made in public if it is reasonably practicable.’ Under the relevant instruments, Members of he Commonwealth Parliament are authorised to receive a pledge of commitment.
While there may be legal grounds for other authorised people to receive the pledge, the common method, and the only one outlined in the letters to the successful applicants, is for the pledge to be made at a citizenship ceremony. However, it appears many people are being denied the chance to make the pledge at a ceremony.
