The unique position of New Zealand citizens in Australia’s migration system

At any one time there are over 600 000 New Zealand citizens living in Australia. That is almost 2.5 per cent of Australia’s total population. It is a lot of people, and most of them hold a Class TY (subclass 444) Special Category Visa (‘SCV’). The SCV is a unique visa with some peculiar aspects. As a result, the rights, entitlements and experiences of New Zealand citizens living in Australia are significantly different to most other non-citizens.

Before we get into the unique aspects of the SCV and what that means for New Zealand citizens living in Australia, it is probably best to provide some background about Australia’s migration system generally and the history of New Zealand citizens migrating to Australia.

Lawful and unlawful non-citizens in Australia

Amendments made to the Migration Act in 1994 mean that non-citizens in Australia belong to one of two groups:

1. lawful non-citizens; and

2. unlawful non-citizens.

The distinction is easy. Lawful non-citizens hold valid Australian visas while unlawful non-citizens do not. The distinction is also significant. The Migration Act compels officers of the Australian Border Force to detain persons they reasonably suspect as being an unlawful non-citizens in immigration detention. Therefore, since 1 September 1994, New Zealand citizens entering and remaining in Australia have had to hold a valid Australian visa.

To add to the confusion, New Zealand citizens who arrived in Australia after 2 April 1984 and were present in Australia on 1 September 1994 were automatically granted SCVs, while those residing in Australia prior to 2 April 1984 were granted an absorbed persons visa (a permanent visa).

History of New Zealand citizen migration to Australia

In the 1970s the New Zealand and Australian governments came to a formal agreement about the ‘free flow’ of migration between both countries. That agreement formalised what had previously been an informal arrangement where it was usual for New Zealand citizens to freely enter and leave Australia without any formal arrangements and limited, if any, documentation. New Zealand citizens were not granted visas authorising their entry to, and stay in, Australia.

The amendments made to the Migration Act in 1994 meant that the ‘free flow’ of migration from New Zealand needed to be reconciled with the requirement that all non-citizens in Australia hold valid visas. The result was the creation of a new type of visa—the SCV.

The unique aspects of the SCV

There are at least three unique aspects of the SCV that put New Zealand citizens in a much different position than most non-citizens seeking to enter and remain in Australia, namely:

1. the ease with which the visa criteria can be satisfied;

2. the (for the most part) automated application and grant processes; and

3. that it is a temporary visa of indefinite duration.

Criteria for grant

The first unique aspect of the SCV is that the criteria for grant are incomparably easy to satisfy (as long as you’re a New Zealand citizen). The main criteria are that the applicant:

1. is a New Zealand citizen; and

2. presents a valid New Zealand passport and incoming passenger card to an immigration officer or automated system on their arrival.

There are some excluding criteria that, most commonly, relate to:

1. past sentences of imprisonment imposed outside of Australia totaling 12 months or more; and

2. any prior removals (or deportations) from Australia or any other country.

What that means is that, subject to falling foul of any of the exclusionary criteria, a New Zealand citizen will satisfy the criteria for grant of an SCV merely by arriving in Australia and presenting a valid New Zealand passport and incoming passenger card. That stands in stark contrast with any other visa, whose eligibility criteria are often extensive and difficult to satisfy.

Application and grant process

In our experience, a large number of New Zealand citizens who have been ordinarily resident in Australia for over a decade are not aware that they even hold a visa. On more than one occasion we have acted for New Zealand citizens who didn’t realise they held a visa until they were notified that their visa had been cancelled.

That might be hard to fathom for any other non-citizens who are ordinarily resident in Australia, because they not only had to satisfy the requisite visa criteria, but also had to make an application for, and be granted, a visa allowing their entry to, and stay in, Australia. However, New Zealand citizens arriving in Australia do not have to make a visa application before travelling to Australia, nor are they required to be granted a visa before arriving.

A New Zealand citizen is taken to have made an application for an SCV on presenting their valid New Zealand passport and incoming passenger card to an officer or authorised system and is taken to have been granted an SCV prior to leaving immigration clearance (i.e. the immigration processing area you filter through after you arrive in Australia). When an SCV is granted, the process is almost invisible.

Temporary visa, but of an indefinite duration

Probably the single most peculiar (and, ultimately, frustrating) aspect of the SCV is that while it authorises a New Zealand citizen to reside in Australia indefinitely until their next departure from Australia (if they are ever to depart), it is technically a temporary visa.

New Zealand citizens holding SCV’s are not automatically entitled to the same rights and benefits as permanent visa holders, even though New Zealand citizens may have lived in Australia for over 15 years. While some New Zealand citizens do share the same rights as permanent visa holders (i.e. in relation to their entitlements to access Australia’s social security system) those rights are afforded as an exception to the general non-entitlement of temporary visa holders.

It is also important to note that a New Zealand citizen’s SCV ceases upon their departure from the Australian migration zone. If they are to return to Australia, they will make a new application for an SCV. If the applicant has fallen foul of one of the exclusionary criteria since their last entry to Australia (or previously undisclosed information comes to the attention of the Department) their application for a new visa may be refused.

The legal standing of SCV holders in Australia

Owing to changes in entitlements over the years, the rights and entitlements of SCV holders vary depending on the date of their arrival in Australia and whether they were present in Australia at particular times or for particular periods.

However, it should be noted that all New Zealand citizens who have entered Australia after 1 September 1994 hold a temporary visa. This means that they may be subject to onshore cancellation under s 116(1) of the Migration Act (see here for a discussion on s 116 cancellations). Permanent visa holders are not exposed to the risk of cancellation under s 116(1).

Further, New Zealand citizens who are not ‘protected’ SCV holders for the purposes of entitlement to social security payments, cannot apply directly for Australian citizenship (regardless of the length of their residence in Australia).

This means that New Zealand citizens ordinarily resident in Australia for over 10 years must apply for, and be granted, a permanent visa before they can apply for Australia citizenship.

The temporary nature of an SCV also means that, since 26 February 2001, where a child is born in Australia to two SCV holders, that child does not automatically acquire Australian citizenship at birth (although, if the child ordinarily resides in Australia for most of the first 10 years of their life, they will automatically acquire Australian citizenship on their 10th birthday—see here for a discussion).

Conclusion

For the above reasons, and many more, New Zealand citizens often end up at the pointy-end of Australia’s migration law. Our firm has developed a relatively detailed understanding of the unique way that Australia’s migration system can interact with New Zealand citizens living in Australia.

As always, if you have a question or concern about your visa status, or your rights and entitlements as a New Zealand citizen in Australia, please don’t hesitate to contact Sentry Law.