What is a Permanent Residence Visa?

Sometimes there is confusion about just what is a permanent residence visa. S.30(1) of the Migration Act states:

30 (1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

But most (if not all) permanent visas contain this about the term of the visa (using the subclass 845 subclass established business visa as an example):

845.5      When visa is in effect

845.511

Permanent visa permitting the holder to travel to, and enter, Australia for a period of 5 years from the date of grant.

So what all this means is that a permanent residence visa does enable one to stay in Australia indefinitely but if one wants to leave Australia and return beyond the 5 year period, one must obtain a further permanent residence visa.  If a person is overseas at the point when the 5 year period expires then one would need to obtain another visa (ordinarily a resident return visa if one met either the residence requirements or the Australian connection requirements).

So it means that permanent residence does not quite mean permanent residence.

It raises some useful strategic issues for business cancellation cases. S. 134(8) of the Migration Act which deals with business visa cancellations, states:

(8)      A cancellation under this section has effect on and from:

(a)      if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa – the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(b)      if:

(i)      the person’s visa was cancelled under subsection (4); and

(ii)      the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;

the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review;

[s. 134(4) deals with secondary visa holders – as long as the primary visa holder has applied to the AAT the secondary visa holders visa continues as well.]

So what this means is that even if the 5 year point is already reached during an AAT hearing process, the person still holds a permanent residence business visa until 28 days after the AAT makes its decision. But if the person wants to leave Australia during that period then the difficulties arise.  A person can not leave Australia after the 5 year term of a permanent residence visa and have a right of re-entry – a separate visa would have to be obtained for that purpose, which may be difficult in circumstances where the original permanent residence visa is subject to a visa cancellation decision.

Strategically it means that the 5 year period following the grant of a permanent residence business visa has to be monitored and the applicant ideally should be present in Australia on that anniversary date so as to retain the right of presence in Australia pending the outcome of the AAT hearing.

In passing this definition is found in Reg 1.03:

Australian permanent resident

means:

(a)      in relation to an applicant for a Return (Residence) (Class BB) visa or a Resident Return (Temporary) (Class TP) visa – a non-citizen who is the holder of a permanent visa; or

(b)      in any other case (other than in the case of an applicant for registration as a migration agent under Part 3 of the Act) – a non-citizen who, being usually resident in Australia, is the holder of a permanent visa.