Pathway to Permanent Residence for New Zealand Citizens

23rd Jun 2017

Background

There has been a formal arrangement in place since the 1920s to facilitate the free flow of people between Australia and New Zealand.  In 1973 this arrangement was formalized with the Trans-Tasman Travel Arrangement.

With the reform of the Migration Act on 1 September 1994, all non-Australian citizens must apply for a visa to enter Australia.  New Zealand citizens entering Australia are granted a Special Category Visa (SCV).  They are granted this visa when they present a New Zealand passport and incoming passenger card at immigration clearance at the International Airport or shipping port.  By so doing, New Zealand citizens are considered to have applied for a visa and are granted an SCV or subclass 444 visa.

On 26 February 2001, a new bilateral social security arrangement was made between Australia and New Zealand.  As a result, New Zealand citizens arriving after this date are not able to access certain social security payments or educational benefits in Australia (eg income support payments).  The only way that they can access these benefits, like New Zealand citizens who arrived prior to this date, was to apply and be granted permanent residence in their own right.

This change has caused hardship for many NZ citizens who arrived in Australia after 26 February 2001 as they are not able to access social security safety nets unless they become permanent residents.

This has resulted in the New Zealand Government lobbying for change in Australia.  In response to these calls, the Australian government announced on 19 February 2016 a new pathway for NZ citizens residing in Australia on or before 19 February 2016 to apply for the new visa.

This new pathway is called the Skilled Independent 189 (New Zealand) Visa Stream.  It will commence on 1 July 2017 and will only apply to NZ citizens who meet the particular requirements.

1 July 2017 Pathway – Skilled Independent 189 (New Zealand) Stream

The Department of Immigration and Border Protection has yet to release all the rules for this new visa.  But it has been announced that NZ citizens who lived in Australia on or before 19 February 2016 may be eligible for this visa if they:

  • Are “usually resident” in Australia;
  • Have been living in Australia for at least five years on or before that date;
  • Have contributed to Australia; and
  • Have met the relevant health and character requirements.

 What do these requirements mean?

 “Usually resident”

 ‘Usually resident’ is generally undefined.  However, the Department has suggested:

“The place that a person is ‘usually resident’ is assessed taking into account their physical residence (where the person eats, sleeps, has a home) and the person’s intention to make that place their home.”

If the applicant can prove that they are or have the intent to reside in Australia, they should be eligible.

Residence for at least 5 years

Applicant has to prove that applicant has been living in Australia for at least five years on or before 19 February 2016 when the announcement was made.

Proving contribution to Australia

Proving of contribution to Australia comes with an evidential requirement in respect of income.

Essentially, the applicant must show they have a taxable income at or above an income threshold for each income year in the five years prior to lodging an application (unless they are claiming an exemption).  Applicants have to provide at least four Notices of Assessment issued by Australian Taxation Office from the relevant five income years – immediately prior to the application.

The applicant’s taxable income must be at or above the income threshold listed for that income year.  In 2012-2013 this was AUD $51,400; but from 2013 to 2017 in each financial year the threshold was AUD$53,900.

There are exemptions to the income tax requirement where an Australian authority is preventing the applicant from leaving Australia, such as where:

  • The Family Court of Australia assigns the primary care of a child to the applicant preventing the applicant from removing that child from Australia; or
  • The applicant is prevented from leaving due to a compensation claim for an injury, resulting in the applicant being unable to continue to earn at or above the income threshold. The result of this being, if the applicant returned to New Zealand, their ongoing rehabilitation and/or compensation would be discontinued
  • The applicant was on an approved parental or carer’s leave from their usual employment and prior to the leave had an annual income of no less than the threshold and when resuming their employment have an earning income of no less than the threshold.

A waiver to the income requirement will be assessed on a case-by-case basis. It will take into account whether the applicant will resume (or intends to resume) earning an income at or above the income threshold within a reasonable timeframe.  Periods of maternity, paternity or carers leave during the qualifying period can be taken into consideration.

The detail of these exemptions will be available from 1 July 2017.

Health and Character requirements

All applicants for permanent residence have to meet the good health and character requirements.  Applicants for the visa have to therefore undertake the requisite health checks, and obtain Penal and Security clearances.  These will be arranged in due course after the application is lodged.

Contact

As many New Zealand citizens came to Australia after the rules changed on 26 February 2001, they have been prevented from obtaining many benefits available to permanent residents.

This new pathway which becomes available from 1 July 2017 offers new hope for many NZ citizens. If after reading this article you believe you may meet the stipulated requirements, please contact our Migration Lawyer, Peter Kuek-Kong Lee on (07) 3009 8444, or by email.

Email:  p.lee@rclaw.com.au

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