Resident Return Visas
TABLE OF CONTENTS
It is ironic that permanent residence does not really mean permanent residence. A non-citizen who wants to leave Australia has to have a visa and eventually will probably need to get a resident return visa. If a person is present in Australia for 2 years out of 5 as a permanent resident one almost automatically gets a 5 year resident return visa through meeting the criteria found in paragraph 155.212(2). If a person holds a permanent residence visa and is offshore or was offshore for more than 3 years out of 5, then as long as he or she meets the close ties test the person is also eligible to get this visa but it will only be a one year re-entry visa. Note even in that latter case it is a permanent residence visa but Here is the criteria in full:
155.21 Criteria to be satisfied at time of application
155.211 The applicant:
(a) is an Australian permanent resident; or
(b) was an Australian citizen but has subsequently lost or renounced Australian citizenship; or
(c) is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.
(1) The applicant meets the requirements of subclause (2), (3), (3A) or (4).
(2) The applicant meets the requirements of this subclause if the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:
(a) was:
(i) the holder of a permanent visa or a permanent entry permit; or
(ii) an Australian citizen; and
(b) was not the holder of:
(i) a temporary visa (other than a Subclass 601 (Electronic Travel Authority) visa, a Subclass 773 Border visa, Subclass 956 Electronic Travel Authority (Business Entrant — Long Validity) visa, Subclass 976 Electronic Travel Authority (Visitor) visa or Subclass 977 Electronic Travel Authority (Business Entrant — Short Validity) visa) held concurrently with the permanent visa or the permanent entry permit); or
(ii) a bridging visa.
[LEGEND Comment – 155.212(2)(b) Repealed/substituted by F2013L00486 with effect from 23/03/2013]
(3) The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and the applicant:
(a) has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence, and the applicant:
(i) holds a permanent visa; or
(ii) last departed Australia as an Australian permanent resident; or
(iii) last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship; or
(b) was an Australian citizen, or an Australian permanent resident, less than 10 years before the application, and has not been absent from Australia for a period of, or periods that total, more than 5 years in the period from the date that the applicant last departed Australia as an Australian citizen or Australian permanent resident to the date of the application, unless there are compelling reasons for the absence.
(3A) The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:
(a) has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and
(b) has not been absent from Australia for a continuous period of 5 years or more since:
(i) the date of grant of the applicant’s most recent permanent visa, unless there are compelling reasons for the absence; or
(ii) the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence.
(4) The applicant meets the requirements of this subclause if the applicant is a member of the family unit of a person who:
(a) has been granted a Subclass 155 visa and that visa is still in effect; or
(b) meets the requirements of subclause (2), (3) or (3A) and has lodged a separate application for a Return (Residence) (Class BB) visa.
Note: Under clause 155.511:
(a) if the applicant is a member of the family unit of a person whose Subclass 155 visa will be in effect for one year or less, the applicant will be granted a visa permitting the holder to travel to and enter Australia for the period of effect; and
(b) if the applicant is a member of the family unit of a person whose Subclass 155 visa will be in effect for more than one year, the applicant will be granted a visa permitting the holder to travel to and enter Australia for one year from the date of grant.
The key provision is (3A) and all migration strategies need to be aimed at meeting this criteria if a person will not meet the 2 year residence requirements.
Subparagraph (3A) could also be used by New Zealander citizens who were in Australia prior to September 1994, even if they had only come for a holiday. It all needs to be quite carefully looked at, but the starting point is, was the New Zealander ever present in Australia prior to September 1994? If so it is worth getting advice on this point.
Former Resident Visa
Also of interest is the subclass 151 Former Resident Visa which applies to a person who spent the greater time of their life in Australia before turning 18 as a permanent resident. Some New Zealanders who were in Australia prior to September 1994 may be in this category. There are also special provisions for foreign nationals who served in the Australian Defences Forces.
Three Months Resident Return Visa
This is a permanent residence visa also inaptly named the subclass 157 Three Months Resident Return Visa. It acts as a three months visa only for the purpose of re-entry but a person could still remain in Australia for the term of his or her natural life on this visa if the person never left Australia. It is a useful visa for re-calibrating one’s permanent residence for the purpose of meeting the subclass 155 visa in the future.
It permits a former permanent resident visa holder to obtain this visa if they held a permanent Residence visa for at least one day in the previous 5 years before the date of application and there were compelling or compassionate reasons for departing Australia or the last departure from Australia.
So with this visa one could remain in Australia for 2 years without leaving and then be eligible for a subclass 155 resident return visa or for one year and obtain that subclass 155 visa for a year.
The writer was successful in a case call Raco where the applicant was away for 30 plus years!
© Lorenzo Boccabella 2017