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by Etienne Hugo

In the past New Zealand has been seen by many as a back door into Australia. This perception may have been formed as skilled immigration to New Zealand has in the past been easier to achieve than to Australia, and Kiwis were once deemed as Australian permanent residents.

Although it is true that there is a special relationship between Australia and New Zealand as its great Southern neighbour, New Zealand citizens are since February 26, 2001 no longer Australian permanent residents by virtue of the fact that they are New Zealand citizens living in Australia. The legal position of a New Zealand citizen who was usually residing in Australia for at least 12 months before February 26, 2001, is different to that of a newly arrived Kiwi. The new arrival is classified as an ‘eligible New Zealand citizen'. Although there may be a number of South Africans who became New Zealand citizens and then chose to reside in Australia and settle here before the above date, this number has remained stagnant in the nine years that have lapsed since that time.

The current position is that as a New Zealand citizen, the following immigration related benefits apply for Australia:

1. Eligibility for a Subclass 444 (special category) visa;

2. Eligibility for a New Zealander's spouse to apply for a Subclass 461 visa;

3. Eligibility for an eligible New Zealand citizen to sponsor a spouse for an Australian spouse visa (either offshore-Subclass 309/100 or the onshore-Subclass 820/801 visa);

4. Eligibility to apply for a general skilled migration, being an offshore visa category, but with the benefit of having the option to be granted this visa while physically in Australia, for example the Subclass 175 and Subclass 176 visa;

5. Holders of Subclass 444 visas are allowed to apply for onshore employer nomination scheme visa as being a suitable visa, as gazetted in the regulations.

6. New Zealand citizens have full work rights in Australia and also have access to Medicare under a reciprocal agreement between the two countries.

1. Subclass 444 (special category) visa

There is a common misconception that New Zealand citizens do not need a visa for Australia. The correct position is that all New Zealand citizens, including the prime minister for New Zealand, unless such a person obviously fails the relevant public interest criteria, will on entry to Australia be granted a Subclass 444 special category visa by operation of law. Such special class visas are not evidenced with a visa label, which may have further fueled the misconception referred to above.

The Subclass 444 visa allows for full work and study rights in Australia and is granted for an indefinite period of time. Note that it is a temporary visa and not a permanent visa for Australia, although the practiced implication is that a Kiwi can live here indefinitely. A holder of a temporary visa (Subclass 444) can never apply for Australian citizenship, no matter how long he or she resides in Australia with such a visa. Unless such a person fits the definition of an eligible New Zealand citizen then such a person is not entitled to support a spouse for an Australian spouse visa. The reasoning behind this is that the holder of Subclass 444 visa is a temporary resident of Australia, and is not eligible to sponsor a spouse for a visa that will lead to permanent residence.

Under the Act you are an eligible New Zealand citizen if:

a) You were in Australia on February 26, 2001 as the holder of a Special Category Visa; or

b) You were in Australia as the holder of a Special Category Visa for a period of, or periods that total, not less than one year in the period of two years immediately before February 26, 2001, or

c) You have a certificate, issued under the Social Security Act 1991, that states that you were, for the purposes of that Act, residing in Australia on that date.

Note though that a Subclass 444 visa holder can sponsor a spouse for a New Zealand spouse visa as explained below.

2. Subclass 461 – New Zealand spouse visa

New Zealand citizens who reside in Australia or plan to do so as holders of Subclass 444 visas, (who do not meet the definition of eligible New Zealand citizens) can sponsor a spouse or de facto partner for a Subclass 461 visa. The visa applicant must provide evidence that he or she is in a genuine and ongoing marriage or de facto relationship with a New Zealand citizen who currently lives in Australia, or is about to live in Australia, which creates the need for such a visa for Australia.

Subclass 461 visa holders have full work and study rights and the visa is granted for periods of four years.

Applications for Subclass 461 visas can be lodged in or outside Australia at the appropriate high commission, embassy or consulate.

3. Sponsorship for Australian spouse visa

New Zealand citizens who meet the definition of being an eligible New Zealand citizen have the capacity to sponsor a spouse or de facto partner for an Australia spouse visa, either onshore or offshore.

In addition to meeting the relevant definition, a sponsor for an Australian spouse visa must further meet sponsorship criteria where a variety of issues are relevant. Examples of these include age, marital status previous sponsorships, previously held visas, and so on.

Other requirements are identical to that of a spouse visa, as sponsored by an Australian citizen or Australian permanent resident.

4. Eligibility to be granted a general skilled migration (offshore) visa in Australia

It is a Schedule One criteria requirement that applicants for general skilled migration (under the offshore category) be physically outside Australia on the date of decision in relation to that application. Although the applicant's physical residence is not critical at time of application, it is vital for a valid visa decision that the applicant for this offshore application is physically outside of Australia on the date of decision. In practice DIAC issues pre-grant letters requesting visa applicants to depart Australia for visa grant.

A special benefit afforded to New Zealand citizens as applicants for general skilled migration visas is that these applicants are allowed to remain physically in Australia at time of decision and can be granted the visa sought while remaining physically in Australia.

5. Eligibility to apply for an onshore employer nominated permanent visa

New Zealand citizens who reside in Australia as holders of Subclass 444 visas are eligible to apply for an onshore permanent visa through the employer nomination scheme (ENS) and can benefit from the application of regulation 856.213(b)(iii)(A), whereby an applicant will meet the relevant criteria in relation to skill level by providing evidence that the applicant was a holder of a suitable visa for at least two years, in which time the applicant worked in the nominated occupation or a closely related occupation for at least one year with the current sponsoring employer.

Such persons do not have to meet the alternative skill level requirement that may require formal skills assessment or very high salary levels.

As only a handful of temporary or provisional visas allow for an onshore application for a Subclass 856 visa, this concession is significant as a benefit to New Zealand citizens.

It is important to consider the eligibility criteria for the ENS visa categories to confirm eligibility.

Note: It is important to contact an immigration agent to further discuss your potential eligibility or that of your family or friends.

Dr Etienne Hugo is a South African born lawyer based in Australia. He is the legal practitioner director of Teleo Immigration, a leading Sydney based law firm specialising in Australian immigration law.

Posted in migration |
Posted by Etienne Hugo
12 Apr 2010

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