2.2.4.50 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 104 weeks. Previous periods of Australian residence can count towards the NARWP. New Zealand citizens can count previous periods of Australian residence as a SCV holder before 26 February 2001 towards the NARWP. However, after this date they need to meet the new definition of Australian resident in order to reduce the NARWP further.

Example: Kiri, a New Zealand citizen, arrived in Australia on 1 July 2001 as the holder of a SCV. On 1 December 2001 Kiri was granted a permanent visa. Kiri claimed a social security payment on 1 February 2002. She had previously lived in Australia as a child 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 2001 to 30 November 2001 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 section 7(4B), will be:

the date the initial decision maker (DIAC) decides to grant a visa to the person, OR
if DIAC decides not to grant a visa and on a review of the decision, that original decision is set aside (however described) by a tribunal and a visa is granted to the person, the date on which DIAC 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 DIAC, and the applicant lodges an appeal with the Migration Review Tribunal (MRT). The MRT has the authority under section 349 of the Migration Act 1958 to:

confirm the decision made by DIAC - the question of a commencement date of the NARWP will not arise, OR
remit the matter back to DIAC for reconsideration on finding that the applicant satisfied the criteria for a permanent visa. When DIAC 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 DIAC rejected their original permanent residency application, even though the new decision of DIAC would carry a later date, OR
set aside the original decision of DIAC on finding that the applicant satisfies the criteria for a permanent visa and remit it back to DIAC for reconsideration. When DIAC 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 DIAC rejected their original permanent residency application.

Example 1: John applied for a permanent residence visa on 1 October 1999. DIAC, on 30 June 2000, rejected his application on the grounds he did not meet the eligibility criteria. An appeal was lodged with the MRT on 20 August 2000. The MRT's decision made almost a year later, on 21 June 2001, found that John satisfied the criteria for the visa and remitted the application back to DIAC for reconsideration, without formally setting aside the decision. DIAC granted permanent residency on 22 April 2002. Although permanent residency was not granted until 22 April 2002, the NARWP commences from 30 June 2000.

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 2000, the date that DIAC rejected John's application for permanent residence.

Example 2: Zac applied for a permanent residence visa on 1 October 1999. DIAC, on 30 June 2000, rejected his application on the grounds he did not meet the eligibility criteria. An appeal was lodged with the MRT on 20 August 2000. The MRT, on finding that Zac satisfied the criteria for permanent residence, sets aside the decision of DIAC and remits it back to DIAC. DIAC grants permanent residence from 22 April 2002. The NARWP commences from 30 June 2000.

The operation of section 7(4B) would mean that Zac's NARWP should be taken to have commenced on 30 June 2000, the date that DIAC rejected Zac'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 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.

Policy reference: SS Guide 1.1.N.70 Newly arrived resident's waiting period (NARWP), 1.1.R.200 Residence, 1.1.V.40 Visa, 3.1.2.40 Newly Arrived Resident's Waiting Period

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Last reviewed: 7 June 2010

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