Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:
(a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and
(b) the following apply:
(i) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
(ii) for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and
(c) the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and
(d) the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and
(e) the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and
(f) the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and
(g) the person was not present in Australia as an unlawful non - citizen at any time during the period of 4 years immediately before the day the person made the application.
Ministerial discretion--alternative residence requirements
(1A) The Minister may, by writing, determine that paragraphs (1)(c) to (g) do not apply in relation to the person if:
(a) the Minister is satisfied that paragraphs (1)(a) and (b) apply in relation to the person; and
(b) the Minister is satisfied that the person's engagement in the kind of work concerned is of benefit to Australia; and
(c) the Minister is satisfied that the person 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
(d) the person was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the person made the application; and
(e) the person was a permanent resident throughout the period of 90 days immediately before the day the person made the application; and
(f) the person was not present in Australia as an unlawful non - citizen at any time during the period of 180 days immediately before the day the person made the application; and
(g) the person has given the Minister an undertaking, in a form approved by the Minister under subsection (8), that, if the person becomes an Australian citizen in circumstances where the Minister exercises the power under this subsection:
(i) the person will be ordinarily resident in Australia throughout the period of 2 years beginning on the day the person becomes an Australian citizen; and
(ii) the person will be present in Australia for a total of at least 180 days during that 2 - year period; and
(h) the person has declared, in the undertaking, that the person 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 person, then, for the purposes of section 21, the person is taken to satisfy the special residence requirement .
Confinement in prison or psychiatric institution
(2) Subject to subsection (3), the person is taken not to satisfy:
(a) paragraph (1)(c) if, at any time during the 4 - year period mentioned in that paragraph; or
(b) paragraph (1A)(d) if, at any time during the 2 - year period mentioned in that paragraph;
the person was:
(c) confined in a prison; or
(d) 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 person.
(3) The Minister may decide that subsection (2) does not apply in relation to the person if, taking into account the circumstances that resulted in the person's confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.
Ministerial discretion--administrative error
(4) For the purposes of paragraph (1)(f) or (1A)(e), the Minister may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the person was not a permanent resident during that period.
(5) For the purposes of paragraph (1)(g) or (1A)(f), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non - citizen if the Minister considers the person 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 person 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)(g).
(9) If the person 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 person becomes an Australian citizen, a statement that:
(a) states that the Minister has exercised the power under subsection (1A); and
(b) states the kind of work 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 kind of work is of benefit to Australia.
(10) However, a statement under subsection (9) is not to include the name of the person.
(11) A determination under subsection (1A) is not a legislative instrument.