Australian Citizenship - Islamic State declared terrorist organisation

Legislative Instrument - F2016L00665 - Australian Citizenship (Declared Terrorist Organisation—Islamic State) Declaration 2016, declares Islamic State a terrorist organisation for the purposes of s35AA of the Australian Citizenship Act 2007.  

Under this Instrument individuals with links to Islamic State may fall within the circumstances of s33AA or s35 of this Act. 

Section 33AA

Provides for the cessation of citizenship of an Australian citizen (who is aged 14 or older and is also a national or citizen of another country) who engages in specified terrorist conduct, while being a member of a declared terrorist organisation, or while acting on instruction of, or in cooperation with, a declared terrorist organisation.

Section 35

Provides for the cessation of Australian citizenship of a person (who is aged 14 or older and is also a national or citizen of another country) who fights for or in the service of a declared terrorist organisation, where the person’s service or fighting occurs outside Australia.

This Instrument commences on 6 May 2016.

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Norfolk Island - transitional migration and Australian citizenship amendments

Legislative Instrument - F2016L00725 - Migration Legislation Amendment (2016 Measures No. 2) Regulation 2016. 

The Instrument above amends the Migration Regulations 1994 and the Australian Citizenship Regulations 2007 to update immigration and citizenship policy, and to transition foreign nationals who are lawfully on Norfolk Island to appropriate Australian visas that are comparable to their entry permit or residence status on Norfolk Island.

Currently, Commonwealth immigration law does not extend to Norfolk Island and is regulated by specific Norfolk Island Regulations.  These Regulations will be repealed on 1 July 2016 and be replaced by the Migration Act 1958.

On 1 July all non-citizens who hold a permit under Norfolk Island Immigration legislation will be 'deemed' to hold a comparable Australian visa, under the transitional arrangements of the Norfolk Island Legislation Amendment Act 2015.

This Amendment Act amends the Migration Regulations to: 

• create an alternative set of criteria for the grant of a Subclass 159 (Provisional Resident Return) visa and Subclass 808 (Confirmatory (Residence)) visa in Schedule 2 to the Migration Regulations for the Norfolk Island cohort; and

• extend the period that the Subclass 159 visa is in effect for this cohort. This will enable holders of this visa to meet the necessary period of residency to be eligible for grant of a Subclass 808 (Confirmatory (Residence)) visa, which is a permanent visa.

The Citizenship Regulations will also be amended to:

• allow citizenship application fees, and refund of citizenship application fees where appropriate, to be paid in foreign currencies and in foreign countries;

• ensure that subregulation 12A(7) accurately refers to the correct Instruments made under regulation 5.36 of the Migration Regulations 1994; and

• ensure that applicants are only refunded an amount equivalent to the test component charged at the time they applied for citizenship.

This Instrument will commence on 1 July 2016.

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Citizenship Bill 2015 passed

The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was passed by Parliament on 3 December 2015.

Australian citizens aged 14 and over can have their Australian citizenship revoked or ceased if they are also a citizen or national of another country and participate in specific activities.

Australian citizenship can be renounced or ceased for:

• engaging in international terrorist activities using explosive or lethal devices;
• engaging in a terrorist act;
• providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;
• directing, recruiting or financing terrorism or the activities of a terrorist organisation;
• engaging in foreign incursions and recruitment

Australian citizenship ceases at the time a person outside Australia commences to:

• serve in the armed forces of a country at war with Australia
• serves or fights for a declared terrorist organisation 

Australian citizenship can also be ceased by determination by the Minister

• for serious crimes under the Criminal Code
• resulting in imprisonment for six years or six years cumulatively
• and that demonstrated the repudiation of allegiance to Australia

The Bill also provides:

• giving notice of a determination
• general provisions related to the Minister's power, including rescinding a notice or exempting a person from its provisions 
• the declaration of terrorist organisations
• the resumption of citizenship

The Bill will become the Act and commence on the day after it receives Royal Assent.

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Recommendations from the Report on Australian Citizenship Amendment (Allegiance to Australia) Bill 2015

The Parliamentary Joint Committee on Intelligence and Security has today presented its bipartisan report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The Bill would allow Australian citizenship to be stripped from dual nationals who, in repudiation of their allegiance to Australia, engage in terrorism-related conduct.

The Committee has made a number of recommendations and subject to these recommendations supports passage of the Bill through the Parliament.

The recommendations narrow the scope of the Bill to improve safeguards, oversight and accountability mechanisms. Recommendations include:

• That retrospectivity of the proposed s35A be limited to people sentenced to more than 10 years imprisonment for terrorism offences, within the last decade
• That the rights of the child be used as the primary determinant when considering cancellation under s35A for those under 18 years old
• That the rules of natural justice should apply to the Minister's discretion under s35A
• ​That the Minister be given the power to annul a revocation decision, if the relevant convictions is later overturned on appeal or quashed, and the person's citizenship be taken to have never been lost
• That the list of offences that could trigger cancellation be limited and not include damaging or destroying Commonwealth property, a number of offences with penalties of less than 10 years or some that have never been used
• That the provision of neutral or independent humanitarian assistance, unintentional acts or acts carried out under duress not be considered to have been undertaken in the service of a declared terrorist organisation
• That no part of the Bill applies to a child aged less than 10 years old
• That s35AA & 35 does not apply to the conduct of a child aged under 14 years of age
• That the Government be required to report publicly every 6 months on the number of times a notice for loss or revocation of citizenship has been issued and provide a brief statement of reasons.
• That the Minister advise the Parliamentary Joint Committee on Intelligence and Security on issuing a notice for loss of citizenship and brief the Committee within 20 days of its issue
• That another review of this Bill be conducted by 1 December 2019.

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Australian passports

The Australian Passports (Application Fees) Determination 2015 - F2015L01222 specifies the fees for Australian passport applications, certificates and documents of identity, travel, provisional travel documents and convention travel documents. 

The application costs vary according to various criteria, including:

• adult, child, age (over 75)
• length of validity
• regular or frequent traveller version
• priority and emergency processing requirement

The new pricing will commence from 1 October 2015.

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Australian Citizenship Amendment (Allegiance to Australia) Bill 2015

The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Bill) has been introduced and undergone its first reading today in the House of Representatives.

The Bill includes measures that:

• provide the Minister for Immigration and Border Protection with the power to revoke the citizenship of dual nationals
• allow individuals who have not been convicted of terrorist activities to lose their citizenship
• allow the intelligence services and Government to declare that it is not 'in the public interest' to release the information used to strip an individual of their citizenship
• not allow an individual a forum to dispute the information on which they have been stripped of their citizenship
• not provide merits review of the decision to revoke the citizenship
• allow judicial review only of a decision to revoke citizenship ie review of the judicial process not the facts or merits of the case.

The Prime Minister has also referred the Bill to the Joint Standing Committee on Intelligence and Security to consider whether the amendments can be enforced retrospectively.

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Changes to Citizenship Act - Opportunity to comment

The Australian Prime Minister and the Minister for Immigration and Border Protection  announced on 27 May 2015 that the Commonwealth Government intends to update the Australian Citizenship Act 2007 to include provisions to revoke the Australian citizenship of dual nationals who engage in acts of terrorism.

The new powers will apply to dual citizens who fight with or support groups such as ISIL or Daesh, as well as so-called 'lone wolves' and will apply whether the terrorism occurs in Australia or on foreign soil. 

The changes will be consistent with Australia's international legal obligation not to leave a person stateless. There will also be safeguards, including judicial review, to balance these powers.

The Commonwealth Government will also launch a national consultation to improve understanding of the privileges and responsibilities of Australian citizenship. This will be led by the Parliamentary Secretary for Social Services, Senator the Hon Concetta Fierravanti-Wells, and the Hon Philip Ruddock MP. Mr Ruddock will undertake this task as the Prime Minister’s Special Envoy for Citizenship and Community Engagement.

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How do children adopted outside Australia become Australian citizens?

The way in which a child who is adopted outside Australia becomes an Australian citizen depends on how their adoption is/was finalised.  There are 3 different ways in which this can occur.

1. Adoptions finalised outside Australia - under full Hague Convention arrangements under section 19C of the Australian Citizenship Act 2007. 

The key requirements of section 19C are that:

• at least one adoptive parent is an Australian citizen;
• an adoption compliance certificate has been issued by the child's country of origin in accordance with the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (Hague Convention); and
• the adoption is recognised in Australia under the law/s of the Commonwealth and each State and Territory.

2. Adoptions finalised in Australia - under bilateral and simple Hague Convention arrangements.

Some of Australia's intercountry programs require the adoption to be completed after the child returns to Australia.  Where the final adoption order has been made in a State or Territory court after the child arrives in Australia as a permanent resident, and at least one of the adoptive parents is an Australian citizen, the child will automatically acquire Australian citizenship under section 13 of the Australian Citizenship Act 2007 (at the time the adoption order is made).

3. Adoptions finalised outside Australia - under other arrangements such as expatriate adoptions.

Where the adoption has been finalised outside Australia under other arrangements, and the adoption does not need to be finalised in Australia, children may be eligible, under subsection 21(5) of the Australian Citizenship Act 2007.  The child must have at least one adoptive parent who is an Australian citizen, must hold a permanent visa for entry into Australia (eg Adoption (subclass 102) visa) and have entered Australia on that visa.

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What is an eligible New Zealand citizen?

An eligible New Zealand citizen is a New Zealand citizen who was living in Australia on 26 February 2001 or for at least one year in the two years immediately before 26 February 2001.

An eligible New Zealand citizen can:

• sponsor family members for an Australian permanent visa
• access certain social security payments
• obtain Australian citizenship.

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