184.108.40.206 Verifying newly arrived resident's waiting period
Date of commencement of NARWP
A NARWP generally commences on the LATEST of the following dates and is subject to whether a person was residing in Australia. The following dates are crucial for the purpose of adequately calculating the NARWP:
- the date the person arrived in Australia, OR
- the date the person was granted permanent residence.
Generally the NARWP ends when a person has been an Australian resident and in Australia for a specified time period. Different payments have different NARWP periods. The length of the waiting period depends on a person's situation and payment type (see 1.1.N.70). Refer to specific payment guide topics for individual rules.
Example: Joel arrived in Australia in December 2015 on a Temporary Skilled Visa (subclass 457) to work for 3 years for an Australian employer. After 3 years Joel applies for a permanent Employer Nomination Scheme visa (subclass 186). Joel continues working for his employer on a temporary visa and is granted the permanent visa in December 2019. Joel is subject to a NARWP commencing from the date he is granted the permanent visa. He must wait up to 4 years (December 2023) until he can receive relevant working age income support payments or family payments (unless he is eligible for an exemption to the NARWP for a specific payment). If Joel was granted a permanent visa before 1 January 2019, he would be subject to the previous rules and would serve a 104 week NARWP for most payments.
Previous periods of Australian residence as a permanent resident can count towards the NARWP. New Zealand citizens can also count previous periods of Australian residence as an SCV holder before 26 February 2001 towards the NARWP. However, after this date they need to meet the definition of Australian resident in order to reduce the NARWP further.
Example: Kiri, a New Zealand citizen, arrived in Australia on 1 July 2018 as the holder of an SCV. On 1 December 2018 Kiri was granted a permanent work visa. Kiri claimed a social security payment on 1 February 2019. She had previously lived in Australia as a child (on an SCV) from 1 June 1982 to 2 June 1983. Kiri would be able to count her previous residence of 12 months, together with her residence after being granted a permanent visa (2 months), to reduce her NARWP to 10 months. She would not be able to count her period in Australia from 1 July 2018 to 30 November 2018 because she did not meet the definition of an Australian resident at that time.
Date of commencement of NARWP pursuant to the operation of SSAct section 7(4B)
The 'day on which a permanent visa is granted to a person or a person becomes the holder of a permanent visa' for the purpose of calculating the NARWP, under SSAct section 7(4B), will be:
- the date the initial decision maker (Department of Home Affairs) decides to grant a visa to the person, OR
- if the Department of Home Affairs decides not to grant a visa and on a review of the decision, that original decision is set aside (however described) and a visa is granted to the person, the date on which the Department of Home Affairs originally decided not to grant the visa to the person.
The above situation could occur when a person applies for a permanent residence visa in Australia and the application is rejected by the Department of Home Affairs, but on appeal, that decision is overturned by the AAT or by Ministerial intervention.
The AAT has the authority under Migration Act 1958 section 349 to:
- confirm the decision made by the Department of Home Affairs - the question of a commencement date of the NARWP will not arise, OR
- remit the matter back to the Department of Home Affairs for reconsideration on finding that the applicant satisfied the criteria for a permanent visa. When the Department of Home Affairs subsequently considers the matter and sets their original decision aside, then the operation of section 7(4B) means that the applicant's NARWP would be taken to have commenced on the day that the Department of Home Affairs rejected their original permanent residency application, even though the new decision of the Department of Home Affairs would carry a later date, OR
- set aside the original decision of the Department of Home Affairs on finding that the applicant satisfies the criteria for a permanent visa and remit it back to the Department of Home Affairs for reconsideration. When the Department of Home Affairs subsequently considers the matter and grants a new visa, the operation of section 7(4B) would mean that the applicant's NARWP would be taken to have commenced on the day that the Department of Home Affairs rejected their original permanent residency application.
Example 1: John applied for a permanent residence visa on 1 October 2016. The Department of Home Affairs, on 30 June 2017, rejected his application on the grounds he did not meet the eligibility criteria. An appeal was lodged with the AAT on 20 August 2017. The AAT's decision made almost a year later, on 21 June 2018, found that John satisfied the criteria for the visa and remitted the application back to the Department of Home Affairs for reconsideration, without formally setting aside the decision. The Department of Home Affairs granted permanent residency on 22 February 2019. Although permanent residency was not granted until 22 February 2019, the NARWP commenced from 30 June 2017.
Explanation: There is no legal definition of the word 'set aside' in section 7(4B). As such when interpreting, considering the words (however described), suggests a broad rather than narrow meaning to the words 'set aside' when used in legal context, suggesting that the original decision no longer has any effect and no reliance is to be placed on the original decision.
The operation of section 7(4B) would mean that John's NARWP should be taken to have commenced on 30 June 2017, the date that the Department of Home Affairs rejected John's application for permanent residence.
Act reference: SSAct section 7(4B) For the purposes of a newly arrived resident's waiting period…
Intent of SSAct section 7(4B)
Operation of SSAct section 7(4B) is intended to result in a more equitable outcome where a person would not be required to serve different waiting periods on the basis of whether their initial permanent residence application is successful or whether their initial application is only successful after appealing an earlier decision. Further, this may eliminate being disadvantaged from accessing income support payments, by the lengthy delays that are inherent in the migration appeal process.