Virginia, US
Despite fierce rivalry on the rugby field, Australia and New Zealand has always enjoyed a close relationship including special travel arrangements for Australian and NZ citizens under the Trans-Tasman Travel Arrangement, which has been in place since 1973.
 
To facilitate this agreement, since 1 September 1994 NZ citizens who present a valid NZ passport and completed Incoming Passenger card are, subject to health and character considerations, granted a Special Category (subclass 444) visa upon entry to Australia. This SCV is unique in the Australian immigration system as whilst classified as a temporary visa, it effectively provides the visa holder with the right to remain in Australia indefinitely with no work restrictions or other conditions. SCV holders may also be entitled to access particular benefits in Australia, including Medicare, but due to limitations within the Australian Social Security Act, cannot qualify certain other benefits that Australian permanent residents and citizens enjoy such as income support payments or HELP student loans. Limited exemptions apply to allow certain NZ citizens to access these benefits as a ‘protected Special Category Visa holder’ under the Social Security Act where they:
 
  • Were in Australia on 26 February 2001 holding a SCV;
  • Were outside Australia on 26 February 2001 but were present in Australia as a SCV for a total of 12 months in the 2 years before that date and subsequently returned to Australia; or
  • Had a certificate issued under the Social Security Act stating that they were living in Australia on a particular date (these are no longer issued).
 
New permanent visa option for NZ citizens
 
Following a meeting with NZ Prime Minister John Keys last week, Australian PM Malcolm Turnbull announced the creation of a dedicated permanent visa pathway for NZ citizens who were present in Australia on or before 19 February 2016, have contributed to Australia and satisfy community protection criteria. Once introduced, it is expected that approximately 60,000 – 70,000 NZ citizens who are presently in Australia will be able to benefit from the new arrangements.
 
Under the arrangements, from 1 July 2017 a new eligibility stream will be created within the Skilled Independent visa category whereby NZ citizens will be able to apply for this permanent visa if they:
 
  • were present in Australia on 19 February 2016 as a SCV holder;
  • have been resident in Australia for 5 years immediately prior to visa application;
  • contributed to Australia, demonstrated through income tax returns for the 5 year period of residence evidencing taxable income at or above the Temporary Skilled Migration Income Threshold (TSMIT)  which is currently set at AUD53,900 (limited exemptions to the income test requirement will be considered for particularly vulnerable NZ citizens); and
  • meet mandatory health, character and security checks.
 
This is not the first time that the Australian Government has provided a visa ‘amnesty’ of sorts for our NZ neighbours. The announcement of a new Australian-NZ bilateral social security agreement on 26 February 2001 not only recognised the right of each country to determine access to social security agreements not covered by the agreement, but also each country’s entitlement to set specific residence and citizenship requirements according to its national policy frameworks. In Australia, amendments were made to the Migration and Citizenship legislation requiring NZ citizens to become Australian permanent residents to sponsor under the permanent family migration program or to qualify for Australian citizenship.
 
Specific transitional arrangements were created to mirror the arrangements for ‘protected’ SCV holders under the Social Security Act. This presented a small window for particular ‘eligible New Zealand citizens’ as defined under the Migration regulations (e.g. SCV holders present in Australia on 26 February 2001) to continue to sponsor family for permanent visas and to be treated as permanent residents for the purposes of the Citizenship Act. 
 
Outside of these ‘eligible’ NZ citizens, since 26 February 2001 all other NZ citizens wanting to apply for permanent residence (and eventually citizenship) have been required qualify in the same way as any other nationality, for example under the family, employer sponsored or points tested general skilled migration categories, even in circumstances where they may have lived in Australia for extended periods of time. The creation of the new permanent visa pathway from 1 July 2017 should mean that a broader group of NZ citizens will be eligible to become permanent residents and eventually qualify for Australian citizenship. 
 
For further information on permanent residence and citizenship requirements, or for advice on a particular situation, please contact me on +61 2 8224 8572 or cwright@fragomen.com.