Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Subject to this section, for the purposes of section 21 a person (the applicant ) satisfies the special residence requirement if:
(a) the following apply:
(i) the applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii) the applicant's engagement in that activity would be of benefit to Australia;
(iii) the applicant needs to be an Australian citizen in order to engage in that activity;
(iv) in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and
(b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and
(c) the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d) the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e) the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f) the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g) the applicant was not present in Australia as an unlawful non - citizen at any time during the period of 2 years immediately before the day the applicant made the application.
Ministerial discretion--alternative residence requirements
(1A) The Minister may, by writing, determine that paragraphs (1)(d) to (g) do not apply in relation to the applicant if:
(a) the Minister is satisfied that paragraphs (1)(a), (b) and (c) apply in relation to the applicant; and
(b) the Minister is satisfied that the applicant satisfies:
(i) paragraphs 21(2)(a), (b), (d), (e), (f), (g) and (h); or
(ii) paragraphs 21(3)(a), (b), (d), (e) and (f); or
(iii) paragraphs 21(4)(a), (b), (c), (e) and (f); and
(c) the applicant was a permanent resident throughout the period of 90 days immediately before the day the applicant made the application; and
(d) the applicant was not present in Australia as an unlawful non - citizen at any time during the period of 180 days immediately before the day the applicant made the application; and
(e) the applicant has given the Minister an undertaking, in a form approved by the Minister under subsection (8), that, if the applicant becomes an Australian citizen in circumstances where the Minister exercises the power under this subsection:
(i) the applicant will be ordinarily resident in Australia throughout the period of 2 years beginning on the day the applicant becomes an Australian citizen; and
(ii) the applicant will be present in Australia for a total of at least 180 days during that 2 - year period; and
(f) the applicant has declared, in the undertaking, that the applicant understands the effect of section 34A.
Note: See also subsections (6) to (11).
(1B) If the Minister exercises the power under subsection (1A) in relation to the applicant, then, for the purposes of section 21, the applicant is taken to satisfy the special residence requirement .
Confinement in prison or psychiatric institution
(2) Subject to subsection (3), the applicant is taken not to satisfy paragraph (1)(c) if, at any time during the 2 year period mentioned in that paragraph, the applicant was:
(a) confined in a prison; or
(b) confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the applicant.
(3) The Minister may decide that subsection (2) does not apply in relation to the applicant if, taking into account the circumstances that resulted in the applicant's confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the applicant.
Ministerial discretion--administrative error
(4) For the purposes of paragraph (1)(f) or (1A)(c), the Minister may treat a period as one in which the applicant was a permanent resident if the Minister considers that, because of an administrative error, the applicant was not a permanent resident during that period.
(5) For the purposes of paragraph (1)(g) or (1A)(d), the Minister may treat a period as one in which the applicant was not present in Australia as an unlawful non - citizen if the Minister considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non - citizen during that period.
Rules relating to power under subsection (1A)
(6) The power under subsection (1A) may only be exercised by the Minister personally.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1A), whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
(8) The Minister may, by writing, approve a form for the purposes of paragraph (1A)(e).
(9) If the applicant becomes an Australian citizen in circumstances where the Minister exercised the power under subsection (1A), the Minister must cause to be tabled in each House of the Parliament, within 15 sitting days of that House after the day the applicant becomes an Australian citizen, a statement that:
(a) states that the Minister has exercised the power under subsection (1A); and
(b) states the activity covered by paragraph (1)(a); and
(c) sets out the reasons for the Minister's exercise of that power, including why the Minister considers that engagement in that activity would be of benefit to Australia.
(10) However, a statement under subsection (9) is not to include the name of the applicant.
(11) A determination under subsection (1A) is not a legislative instrument.