Status of New Zealand Citizens

Status of New Zealand Citizens

Please note: Information provided on our website and social media is intended as a guide and general educational resource only. The only way to know what is best for each individual case is to book an assessment. Erina is a highly experienced and knowledgeable registered migration agent who specialises solely in the migration matters of New Zealand citizens who live in Australia.

One of the most difficult concepts in immigration law to grasp is understanding how the immigration status of New Zealand citizens who live in Australia works.

This is because Australian laws have changed a number of times regarding the immigration status of New Zealand citizens, particularly since 1986. These changes have not been made clear to anyone, including New Zealand citizens and as a result, explaining our status is very challenging, to say the least.

New Zealand citizens don’t all hold the same immigration status and as a result, these differences have a direct impact on any choices we may or may not have when seeking to obtain dual New Zealand & Australian citizenship.

Time line: Prior to 1 March 1973, citizens of New Zealand and Australia were free to move between each country under informal arrangements

1973 - EXEMPT NON-CITIZENS

Trans-Tasman Travel Arrangment (TTTA) is introduced and formally sets out the arrangements and conditions for travel between Australia and New Zealand

1981 - EXEMPT NON-CITIZENS

New Zealand citizens now need a passport to enter Australia. 

1986 - EXEMPT NON-CITIZENS

Children born to ‘exempt non-citizens’ are no longer recognised as Australian citizens at birth under the Citizenship Act.

1994 - SPECIAL CATEGORY VISA, SUBCLASS TY444

The Special Category Visa (SCV), subclass TY444 was introduced for New Zealand citizens. 

2001 - PROTECTED & NON PROTECTED SCV HOLDERS

On the 26th February 2001, the Citizenship Act was amended. The Social Security Act was also amended in alignment with the Citizenship Act.

2016

The Skilled Independent Visa, subclass 189 (New Zealand Stream) is introduced.

PRE 20 AUGUST 1986

Children born in Australia to New Zealand citizen parents who are exempt non-citizens prior to 20 August 1986 are Australian citizens at birth

20 AUGUST 1986 TO 31 AUGUST 1994

Children born to New Zealand citizens who are exempt non-citizens are not Australian citizens at birth. They may acquire citizenship on their 10th birthday if they meet certain criteria.

1 SEPTEMBER 1994 TO 26 FEBRUARY 2001

Children born to SCV holders are Australian citizens at birth.

27 FEBRUARY 2001 TO CURRENT

Children born to protected SCV holders also known as eligible New Zealand citizens are Australian citizens at birth.

27 FEBRUARY 2001 TO CURRENT

Children born to non-protected SCV holders are not Australian citizens at birth.

27 FEBRUARY 2001 TO CURRENT

Children born to New Zealand parents who hold a permanent visa or are dual Australian citizens at the time of their birth are Australian citizens at birth.

1973 - Trans-Tasman Travel Arrangement

On 22 January 1973, Prime Ministers of New Zealand and Australia, Gough Whitlam and Norman Kirk announced the basis for the TTTA.

Between 1 March 1973 and 31 August 1994 citizens of each country and citizens of other Commonwealth countries who had resident status in either Australia or New Zealand were able to travel freely between our two nations for either permanent or temporary stay without the need to provide a passport or visa.

New Zealand citizens are now classified as ‘exempt non-citizens’. Prior to this classification New Zealand citizens were classified as ‘British Subjects’.

1981 - Introduction of New Zealand Passports to Enter Australia

New Zealand citizens are required to present a valid passport at Australia’s borders.

New Zealand citizens continue to be classified as an ‘exempt non-citizen’ for the purposes of the Migration Act 1958 (Cth) and no visa was required.

1986 - Citizenship Status of Children Born In Australia

The acquisition of Australian citizenship was restricted to children born in australia to Australian citizens and permanent residents and excluded children who were born to New Zealand citizens who were ‘exempt non-citizens’.

This was because the birth provisions of the 1948 Act, subsection 10(6), specifically excluded ‘exempt non-citizesns’ from the definition of ‘permanent resident’ under the Migration Act.

Therefore, children born between 20 August 1986 and 31 August 1994 to New Zealand citizens who were ‘exempt non-citizens’ did not become  Australian citizens at birth.

Any child born in Australia prior to 20 August 1986 acquired Australian citizenship at birth, reagrdless of the status of their parents.

1994 - Introduction of the Special Category Visa (SCV), subclass TY444

From 1 September 1994 amendments to the Migration Act required all non-citizens in Australia to hold valid visas. This included New Zealand citizens who were ‘exempt non-citizens’.

Section 32 of the Migration Act introduced the SCV which was a new class of temporary visa.

The SCV allows New Zealand citizens to enter Australia to visit, live and work indefinitely.

The SCV is granted automatically and all a New Zealand citizen needs to do to apply for an SCV is to complete an Incoming Passenger Card, meet the health and character requirements and present it at the border or in some cases, to an Immigration Officer at an Immigration Office.

At this point in time New Zealand citizens are now recognised as both permanent residents under the Citizenship Act but temporary residents under the Migration Act. 

2001 - Significant Changes for New Zealand Citizens

Most NZ citizens who arrive after 26 February 2001 must apply for and be granted a permanent visa in order to apply for Australian citizenship.

Only Eligible New Zealand citizens are still recognised as permanent residents under the Citizenship Act.

2016 - Subclass 189 (New Zealand Stream) Permanent Visa Pathway is Introduced

On 19 February 2016 Australian Prime Minister, Malcolm Turnball announces the Skilled Independent Visa, subclass 189 (New Zealand Stream) permanent visa pathway for all TY444 visa holders.

Eligibility criteria states earnings above the Temporary Skilled Migration Income Threshold $53,900 taxable income and who were residing in Australia continuously on or prior to 19 February 2016.

The pathway was not available until 1 July 2017.

In Australia there are two distinct differences in immigration statuses:

Australian citizen

Non-[Australian] citizen

Section 13 & 14 of the Migration Act 1958 (Cth)

All non-citizens are divided into two distinct groups:

Z

Lawful Non-citizens

Unlawful Non-citizens

Lawful non-citizens hold a VISA which is effect or an allowed inhabitant of the Protected Zone.  There are two distinct groups of VISAs:

Z

Permanent VISAs

Temporary VISAs

Unlawful non-citizens do not hold a VISA which allows them to be in Australia.  Under Australian migration law, unlawful non-citizens are not permitted to remain freely in the community.  Instead they must either be granted another VISA or be detained, usually within an immigration detention facility and removed from Australia as soon as possible.

How does a non-citizen become an unlawful non-citizen?

  1. Overstaying their temporary visa
  2. Losing their permanent visa somehow – usually by not adhering to the conditions of that visa or travelling on an expired permanent visa without renewing it
  3. Had their visa cancelled – either through failing character requirements or failing to adhere to the conditions of their visa

How does a non-citizen ensure they remain a lawful?

  1. Understand what visa they are on
  2. Understand the conditions associated with that visa
  3. Ensure they apply for and are granted a new visa when/if necessary
  4. Keep their contact information updated with the Department of Home Affairs eg email, address, phone number
  5. Keep a check on any possible updates or changes to their visa status

What happens if a person becomes unlawful?

The answer will first depend on what caused the individual to become unlawful. The key consequences are:

  1. Limited visa options available that can be applied for
  2. The person may be able to go offshore and apply for and be granted a new visa then re-enter Australia as a lawful non-citizen again
  3. Once removed, a prescribed ban period from reapplying for a new visa and re-entering Australia
  4. Once removed, a lifetime ban from re-entering Australia
  5. In some cases, a person will be billed for the time they were detained and costs of removal
  6. In some cases of visa cancellations, there may be prescribed circumstances where people may seek to have their decision reviewed and the decision to cancel their visa revoked. In other words, their visa is reinstated as if it had not been cancelled in the first instance.

What if the non-citizen has been living in Australia for most of their life?

Again, depending upon the reason for becoming an unlawful non-citizen the same rules apply, regardless of whether the person has been here for a relatively short time or a very long time.

“As you can see, it is crucial to understand your own status and how you might take care of your status in order to remain lawful at all times.”

New Zealand citizens are exempted from applying for a visa to travel to Australia and provided certain criteria are met, issued a Special Category Visa (SCV), subclass TY444.

To be granted the TY444 visa, the applicant must present a New Zealand passport AND neither a behaviour concern non-citizen (BCNC)* nor a health concern non-citizen (HCNOC)**.

*If you have had criminal convictions, been deported, excluded or removed from any country, including Australia you may be considered a BCNC.

**If you have untreated tuberculosis you may be considered a HCNC.

The TY444 ceases to exist each time a New Zealand citizen leaves Australia and a new TY444 is reissued upon each entry back into Australia, regardless of whether the person lives in Australia permanently or not.

Section 32 of the Migration Act 1958 (Cth

New Zealand citizens that don’t hold a TY444 visa will either hold an absorbed person visa or have applied for and been granted a permanent visa such as a Resident Return Visa/subclass 155 , Skilled Independent visa/subclass 189, Partner visa/subclass 801, Child sponsor visa/subclass 820 or a variety of other permanent visas they may have applied for and been granted. Either way, a New Zealand citizen who holds a permanent visa will usually be aware of it because they have had to go through a stringent process to apply, paid a visa application fee and will have a Visa Grant Notification in the form of a letter issued to them.

The other ways a person may check their visa status is to run a Visa Entitlement Verification Online (VEVO) check or apply for their official movement record from the Department of Home Affairs. This can be done by the applicant themselves or through a registered migration agent, organisation or government agency. or Some New Zealand citizens may even have a special sticker in their passport but these are no longer issued anymore due to everything being issued electronically.

When New Zealand citizens enter Australia we fill in an incoming passenger card.
Did you know, that when a New Zealand citizen completes an incoming passenger card (IPC) using their New Zealand passport, this is actually a visa application for the Special Category Visa, subclass TY444?
Once a New Zealand citizen has been processed through immigration clearance (customs) we are automatically granted a Special Category Visa (SCV), subclass TY444.
Did you know, that a TY444 ceases to exist each time a New Zealand citizen leaves Australia and a new TY444 visa is granted each time that New Zealand citizen enters Australia?
Most New Zealand citizens hold a Special Category Visa, subclass TY444 yet up until recent years, most were completely unaware they even held a visa, let alone what their visa status was.
Why did New Zealand citizens not know they held a visa? Surely every migrant into Australia would know right?
Wrong, and here’s the reason why.
When the SCV was introduced on the 1st September 1994, New Zealanders were not formally informed. Nor is the IPC an obvious visa application form because it does not have any information on it to show that it is a visa application form like all other visa application forms. Nor is there a visa grant letter given to New Zealand citizens at the time of processing through immigration clearance.
As a result, we have a large population of New Zealand citizens who are unaware of their immigration status and furthermore the potential risks and dangers their immigration status can pose.
In order to apply for Australian citizenship, you must be classed as a permanent resident. A permanent resident generally holds a permanent visa before they are able to apply for Australian citizenship. However, there is a status of New Zealand citizens that are considered permanent residents for the purposes of applying for Australian citizenship. This group of New Zealand citizens are otherwise known as ‘Protected SCV holders’ or ‘Eligible New Zealand citizens’.

Eligible New Zealand citizens are the only group of migrant in Australia that hold a temporary visa but permanent resident status at the same time. For further information go to our link Eligible New Zealand citizens.

Nga mihi

Erina Morunga

MARN: 1797713