Special Category Visa

A Special Category Visa (SCV) is an Australian visa category (subclass 444) granted to most New Zealand citizens on arrival in Australia, enabling them to visit, study, stay and work in Australia indefinitely under the Trans-Tasman Travel Arrangement. Currently, there are two categories of SCVs: protected SCV and as non-protected SCV. New Zealanders who had entered Australia before 26 February 2001 are classified as protected SCV holders, and after that date as non-protected SCV holders. The rights of the two categories are somewhat different.

Description

A Special Category Visa is granted to New Zealander passport holders upon arrival to Australia. The SCV remains valid until the visa holder acquires Australian permanent residency or citizenship or has their visa cancelled. The SCV ceases when its holder departs Australia for any reason, but a new SCV is granted on return.[1]

The SCV allows New Zealand citizens to reside in Australia; visit, work and study in Australia; and apply for permanent visas if they meet eligibility requirements. The SCV is technically classified as a temporary visa, despite its holder's residence in Australia not being subject to any limitation as to time imposed by law.[2]

Most New Zealanders are eligible for a SCV, except:

  • those with tuberculosis[3]
  • those with significant criminal records, i.e. being sentenced to more than 12 months' imprisonment combined in total[3]
  • those who hold temporary or permanent Australian visas
  • those who arrive in Australia using another passport (e.g. if holding dual nationality). In this case an SCV can be obtained at a Department of Immigration office in Australia upon production of a valid New Zealand passport
  • those who arrive for specified purposes, such as diplomats and visiting forces, who are normally granted a special purpose visa.

History

The Special Category Visa was created on 1 September 1994 by the Migration Regulations 1994, which created the universal visa system in Australia. Prior to that date, New Zealanders were generally treated as exempt non-citizens in Australia, not requiring a visa for entry. Under the 1994 regulations, New Zealanders entering Australia are treated as having applied for a temporary entry visa, which is automatically granted, subject to health and character considerations, on arrival.

Protected SCV

Until 26 February 2001, SCV holders were generally treated the same as permanent visa holders.

After that date, they are considered protected SCV holders and retain the same rights as permanent residents if they meet one of the following conditions:

  1. In Australia with SCV on 26 February 2001
  2. Was in Australia with SCV for a total of at least a year during the two years prior to that date
  3. Usually in Australia with SCV, away temporarily on 26 Feb 2001, collected an Australian social benefit on that date, and returned before 26 August 2001[4]

They are eligible for most social security benefits without restriction. They are also eligible to apply for Australian citizenship, provided they meet character and health requirements, without needing to apply for permanent residency.

Non-protected SCV

In 2001, Australia introduced a number of changes in the rights of SCV holders. New Zealanders who enter Australia after 26 February 2001, remain in Australia to live and work indefinitely are classed as non-protected SCV holders. They have restricted access to social security benefits; e.g. they are eligible for a one-off 6-month unemployment benefit after 10 years of residence under the current rules. They are also required to apply for and obtain Australian permanent resident status before becoming eligible for Australian citizenship.[5]

During the COVID-19 pandemic in Australia, many SCV holders were ineligible to access Centrelink payments, prompting many to return to New Zealand. On 30 March 2020, Australian Prime Minister Scott Morrison announced that Special Category Visa holders would be eligible for AU$1,500 fortnightly payments as hardship assistance following negotiations with New Zealand Prime Minister Jacinda Ardern.[6]

In early July 2022, Australian Prime Minister Anthony Albanese confirmed that SCV holders would be eligible for flood relief assistance following the 2022 New South Wales floods. This flood relief assistance consists of a one-off means-tested payment of A$1,000 for adults and A$400 for children. Ardern welcomed this development as a positive step in Australian-New Zealand bilateral relations.[7]

Permanent resident status

SCV holders fit the commonly understood meaning of the term 'permanent resident' as they are entitled to live in Australia indefinitely, in much the same way as an Australian citizen or a permanent visa holder. However, they are not treated as permanent residents for the purpose of some Australian legislation.

Even in federal migration and citizenship law, there is no standard definition of the term and SCV holders are treated inconsistently.

Section 204 of the Migration Act 1958 includes all SCV holders within the definition of 'permanent resident' on the basis they are 'not subject to any limitation as to time imposed by law'.

The Migration Regulations 1994 exclude all SCV holders from the definition of 'Australian permanent resident', including only permanent visa holders within the definition.

The Australian Citizenship Act 2007 empowers the relevant Minister to declare by legislative instrument whether SCV holders are permanent residents for the purpose of the Act. The current legislative instrument includes some SCV holders, while excluding others.

Resident Return Visa

New Zealand citizens who entered Australia before 1 September 1994 (regardless of the purpose of entry) are considered "former Australian permanent residents", and eligible to apply for a Resident Return Visa (RRV). An RRV can be issued to former Australian permanent residents who wish to restore their permanent residence status. Applicants must demonstrate 'substantial ties of benefit to Australia' and give compelling reasons for any continuous absences of 5 years or more (since their last stay in Australia as a permanent resident, i.e. as a New Zealand citizen entering before 1 September 1994).[8][9] In the absence of a RRV, the New Zealand citizen will be taken it have made of new entry into Australia.

Additional pathway to permanent residence

Since 1 July 2017, SCV holders who were resident in Australia on or before 19 February 2016 could apply for permanent residence after 5 years in Australia, in a new New Zealand stream within the Skilled Independent (subclass 189) visa. They must:[10][11]

  • be resident in Australia for a continuous period of five years prior to application
  • submit income tax returns which show assessable income at least equivalent to the Temporary Skilled Migration Income Threshold (TSMIT) (i.e. AU$53,900 per annum) for each income year within the five-year period (i.e. the most recent four income years) prior to application, unless they were claiming an income exemption.
  • pass mandatory health, character and security checks.

On 1 July 2021, the income criteria was relaxed to three income years in the five-year period, one of which must be the most recent income year.[12] This only applied to new applications from that date and did not apply to existing submitted applications.[13]

The stream was temporarily paused to new applications between 10 December 2022 and 1 July 2023 to allow existing applications to be processed. The criteria relating to the period of residence in Australia, the income threshold and health were also removed. The streamlining of processes was an acknowledgement that the existing applicants were long-term residents of Australia who have worked and contributed to Australia's economy. The federal government has indicated that they would be considering future options for New Zealand citizens in Australia.[14]

Until 31 December 2022, New Zealand citizens who were granted the subclass 189 NZ visa were eligible to apply for Australian citizenship after 12 months, in addition to the 5 years as a SCV holder. Since 1 January 2023, New Zealand citizens who have been granted the subclass 189 NZ visa can immediately apply for Australian citizenship without the need to hold permanent residency for 12 months. This also applies to those who were granted the visa prior to this date.[15]

On 22 April 2023, Australian Prime Minister Anthony Albanese, Home Affairs Minister Clare O'Neil, and Immigration Minister Andrew Giles announced Special Category Visa holders who have resided in Australia for four years and meet other residency requirements would be able to directly apply for Australian citizenship from 1 July 2023 without the need to apply for permanent residency.[16] In addition, children born in Australia to a New Zealander from 1 July 2023 will automatically be eligible for Australian citizenship.[17] The announcement was welcomed by New Zealand Prime Minister Chris Hipkins and Oz Kiwi chairperson Joanne Cox for improving New Zealanders' access to Australian citizenship and social security.[18][17]

Cancellation of SCVs

In December 2014, the Australian Government amended the Migration Act 1958 to introduce "Section 501" which facilitated the deportation of non-citizens who had been imprisoned for twelve months and were deemed by Australian authorities to be of "bad character."[19][20] By July 2019, nearly 1,600 New Zealanders (including SCV holders) who had been sentenced to 12 months' jail had their visas cancelled and were deported. That same year, the Australian Government indicated it was planning to tighten the Section 501 "character test" by looking at the potential maximum sentence for an offence instead of what the actual sentence was.[21]

The accelerated deportation of New Zealanders (many of whom had spent most of their lives in Australia) under the 501 character test has strained bilateral relations between Wellington and Canberra. While Australian policymakers including Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison defended the deportations on law and order grounds, New Zealand policymakers including Justice Minister Andrew Little and Prime Minister Jacinda Ardern have criticised the deportations for violating human rights and damaging bilateral relations.[22][23] By March 2022, 2,544 New Zealanders had been deported from Australia, which accounted for 96% of deportations to New Zealand since 2015. Due to limited family connections, poverty, and poor employment opportunities, many former deportees relapsed into criminal offender. Between January 2015 and March 2022, former deportees accounted for 8,000 offenses including dishonesty, violent crime, drugs, and anti-social behaviour.[24] In addition, the 501 deportation policy also contributed to a surge in organised crime in New Zealand due to the repatriation of Comanchero and Mongol bikie gang members.[25]

See also

References

  1. ^ "Subclass 444 Special Category visa (SCV): Overview". Department of Home Affairs. Retrieved 9 May 2022.
  2. ^ "Subclass 444 Special Category visa (SCV): About". Department of Home Affairs. Retrieved 9 May 2022.
  3. ^ a b "Subclass 444 Special Category visa (SCV): Eligibility". Department of Home Affairs. Retrieved 9 May 2022.
  4. ^ "9.1.3 New Zealand citizens | Social Security Guide". Retrieved 8 July 2022.
  5. ^ O'Regan, Sylvia Varnham (3 July 2018). "Why New Zealand Is Furious About Australia's Deportation Policy". The New York Times. Archived from the original on 3 July 2018. Retrieved 9 May 2022.
  6. ^ "Covid-19 coronavirus: New Zealanders living in Australia able to access payments". The New Zealand Herald. 30 March 2020. Archived from the original on 30 March 2020. Retrieved 30 March 2020.
  7. ^ "Australia flood relief for New Zealanders a 'significant shift' - Prime Minister Jacinda Ardern". Radio New Zealand. 6 July 2022. Archived from the original on 6 July 2022. Retrieved 6 July 2022.
  8. ^ "New Zealand Citizens". Archived from the original on 4 July 2015.
  9. ^ "Eligibility for a Resident Return Visa". 31 August 2013.
  10. ^ "Skilled Independent (subclass 189) (New Zealand) stream". Department of Home Affairs. Archived from the original on 24 December 2017.
  11. ^ "An additional pathway to permanent residence for 'non-protected' Special Category Visa (SCV) holders". Department of Immigration and Border Protection. Archived from the original on 19 February 2016.
  12. ^ "Subclass 189 (New Zealand Stream)". Morunga Migration. Retrieved 2 February 2023.
  13. ^ "Skilled visa newsletter – June 2021". Department of Home Affairs. Retrieved 2 February 2023.
  14. ^ "Skilled Independent (subclass 189) visa – New Zealand stream only – temporary closure of applications and streamlining measures commencing 10 December 2022". Department of Home Affairs. Archived from the original on 2 February 2023. Retrieved 2 February 2023.
  15. ^ "Expedited citizenship pathway for New Zealand stream Skilled Independent (subclass 189) visa holders". Department of Home Affairs. 1 January 2023. Archived from the original on 2 February 2023. Retrieved 2 February 2023.
  16. ^ "Direct pathway to Australian citizenship for New Zealanders". Prime Minister of Australia. 22 April 2023. Archived from the original on 22 April 2023. Retrieved 23 April 2023.
  17. ^ a b Neilson, Michael (22 April 2023). "New Zealanders in Australia to get pathway to citizenship; PM Hipkins says biggest improvement in rights 'in a generation'". The New Zealand Herald. Archived from the original on 22 April 2023. Retrieved 23 April 2023.
  18. ^ "'A blimmin' good day for Kiwis living in Australia' - Hipkins on citizenship changes". Radio New Zealand. 22 April 2023. Archived from the original on 22 April 2023. Retrieved 23 April 2023.
  19. ^ Migration Act 1958 (Cth) s 501 Refusal or cancellation of visa on character grounds.
  20. ^ O'Regan, Sylvia Varnham (3 July 2018). "Why New Zealand Is Furious About Australia's Deportation Policy". The New York Times. Archived from the original on 3 July 2018. Retrieved 14 May 2022.
  21. ^ "Australia looks to further tighten visa requirements". Radio New Zealand. 30 July 2019. Archived from the original on 26 September 2020. Retrieved 1 April 2021.
  22. ^ Khalil, Shireen (19 July 2018). "'No consideration for victims': ABC slammed over NZ deportation programme". The New Zealand Herald. Retrieved 14 May 2022.
  23. ^ "Jacinda Ardern: Australia's deportation policy 'corrosive'". BBC News. 28 February 2020. Retrieved 14 May 2022.
  24. ^ Small, Zane (5 March 2022). "Impact of Australia's 'cruel' deportations and number of 501 crimes in New Zealand revealed". Newshub. Archived from the original on 25 March 2022. Retrieved 3 May 2022.
  25. ^ Vance, Andrea; Ensor, Blair; McGregor, Iain (December 2019). "Con Air: Flying to New Zealand in handcuffs". Stuff. Archived from the original on 16 March 2021. Retrieved 14 May 2022.