Substantial Ties of Benefit to Australia

In our recent edition Volume 231 we covered the application for a Resident Return visa (RRV). It was discussed that if you do meet the basic requirement of 730 days in a five year period then you must be assessed by DIAC to meet the "Close Ties to Australia" provision. Today we will discuss the guidelines DIAC case officers use in making this assessment.

One year grant of the 155 RRV

Firstly we must point out that is you are being assessed under this provision then you will only be granted a one year RRV visa not the usual 5 year RRV. This was changed not so long ago. In the past if one met the close ties assessment then they would be granted the 5 year 155 RRV visa but not anymore. One year is all that you can expect.

An example which is based upon a readers question sent to us recently.

Jane studied in Australia and gained her permanent residency via the 885 GSM visa. Soon after her residency grant she was offered employment in Sydney for a large multinational company but the head office is in the UK. A few months later she offered a position at the Singapore branch of this company and left Australia on her PR visa. It was Jane's choice that she took up the job offer and leave Australia for a greater international experience. At the time she left she had only spent 9 months as an Australian Permanent Resident.

Her original 885 PR visa expires in April 2014. In June of this year she is planning to come to Australia on holidays and buy a property. Jane plans to rent this property out until she is ready to live permanently in Australia again. The intention of buying this property is to live there when she returns, not just as an income source. If she wanted an income source she knows she can get a better return by leaving her cash in the bank.

Jane wishes to gain another 5 year permanent residency visa so she can continue to work in Singapore for the next 3-4 years before returning to Australia for good.

For the answer to Jane's dilemma read below after we have outlined what is expected to meet the "Close Ties" provision.

Business, cultural, employment or personal ties with Australia?

Last week we explained there are four major categories these substantial ties to Australia must fall into to have a chance of obtaining the grant of the RRV visa.

Business Ties

An applicant will need to demonstrate that they have a substantial ownership interest in an Australian business or a branch of a business which has connections with Australia.

DIAC will examine the major key areas of this business;

If the activities of the business has led to the creation of employment in Australia, or offshore, for Australian citizens or permanent residents. Evidence of downstream creation of employment in Australia should also be taken into consideration if there is a direct connection with the applicant's business activities

• whether it generates revenue in or for Australia
• the size of the business
• if the business activity enhances links with other countries
• whether the activity has led to production of goods or services in Australia of merchantable quantity
• whether the business is actively trading at the time of application
• evidence of recent taxation assessments of the business in Australia
• evidence of transferring Australian knowledge and technology offshore or
• evidence of introducing new technology into Australia.

Demonstrating you have a substantial ownership interest can be a little tricky. Obviously if you are the sole shareholder or one of few partners then there would not be much of an issue. If however your ownership interest is towards the smaller end of the scale (say 10%) DIAC will need to see that you derive a substantial income or demonstrate that business would have difficulty operating without you.

With regard to those lucky enough to have a substantial investment portfolio and you make a living from the day to day management of this activity, then as long as you can demonstrate actively managed substantial investments in Australia then it is possible to meet this requirement.

Employment Ties

If you are offshore and have a job offer but not yet moved to Australia this would most likely, meet the guidelines. However the offer should be consistent with your education and work experience background. Be careful if you have used this provision before to have a RRV granted but the employment and move to Australia never eventuated then they will look very closely to any subsequent claims in this regard.

An applicant's substantial employment tie may be of benefit to Australia if the applicant is currently employed in Australia. However if an application is made only after recently returning to Australia then DIAC will consider the following first;

The need to obtain an RRV in order to travel having recently arrived in or returned to Australia may raise doubts about the veracity of the employment claim and require further information being sought from the applicant. Consideration should be given to whether:

• the employment is of a type that is likely to require international travel
• the applicant currently holds a temporary visa with no work rights
• there are compelling reasons for the travel.
• It is possible that DIAC would recommend an application for the 3 month 157 RRV instead of the 155 application.
• If you currently have employment outside of Australia then this can be considered if you are employed by;
• an Australian organisation (for example, a company, university, college, religious organisation)
• a Commonwealth, state, territory or local government organisation (including a government business enterprise or a statutory authority/agency)
• the Australian office of an international charity organisation or
• as a representative of Australia in an international organisation to which the International Organisations (Privileges and Immunities) Act 1963 applies within the meaning of s3(1) of that Act.

Cultural Ties

If you do not fit into the employment or business tie with Australia but you are actively involved in any  range of intellectual, artistic, sporting or religious pursuits you may be considered to have a cultural tie with Australia.

These activities are not meant to be at personal hobby or just enjoyment based in nature, they need to be at a professional level or at a level where you can demonstrate a degree of public recognition within Australia.

Some examples of persons who may have substantial cultural ties include, but are not limited to:

• a person who is accepted as a member of a cultural community within Australia who is actively involved in traditional activities
• a person involved in the Arts at a professional level
• members of religious communities in Australia or
• sports persons or professional support staff who are members of Australian sporting associations.

DIAC will be expecting to find that these cultural ties to Australia would be inline with how you obtain your original PR visa.

Personal Ties to Australia

DIAC describes the byproduct of these personal ties is one where you enrich the lives of individual Australian residents. There is a catch though, it is expected that you are, or have been, "a participating member of the Australian community and economy".

Enabling family unit members to reside in Australia together is one of the intentions of this policy guideline.

Examples of some personal ties are given where an applicant that may meet this criteria;

• has a history of long term residence in Australia prior to the last 5 years, particularly, if the applicant has spent their formative years in Australia or has spent a significant amount of time in Australia since first being granted a permanent visa. Under policy, the greater the proportion of their life in Australia since first being granted a permanent visa, the more weight this should be given
• has been living outside Australia with an Australian citizen partner or, in the case of a minor child, Australian citizen parent, who has previously lived in Australia. Such situations should be given considerable weight as their Australian citizen partner or parent has an automatic right of entry to Australia
• has been living overseas with their family unit, including Australian citizen minor children, and the applicant provides evidence of imminent plans to return to Australia with their family to live (this tie should be given considerable weight)
• has personal assets in Australia, for example family home or single investment property - although ownership of a family home or investment property in Australia may help substantiate a personal tie, whether there was a benefit to Australia will depend on whether it is occupied, for example, by a close family member or actively being rented
• has close family members (that is, of a type for which family reunion might be available under the Family Stream of the Migration Program) who have substantial residence in Australia and are Australian permanent residents or Australian citizens.

In all of these guidelines it is important to convince DIAC of your intention to permanently reside I Australia. They will consider to what extent you regard Australia as your home and whether you now intend to live in Australia permanently.

Another relevant consideration in assessing whether an applicant's personal tie(s) is/are substantial is the persons history and intention of residing in Australia. Do they: 

*      regard Australia as home and 

*      intend to reside permanently.

It is recognised that a person may have substantial ties to more than one country. RRV criteria do not require an applicant to have greater ties to Australia but merely have substantial ties which are of benefit to Australia.

If a claim of substantial personal ties is being made for a minor, evidence should be provided that parents and/or legal guardians support the application.

So what chance does Jane for her 155 RRV application?

Well Jane's example is a little complicated but actually very common for young former international students who have gained their residency by studying in Australia.

Yes the purchase of the property where she can argue is a future home for her and it is being actively rented to local residents, is probably enough for her to gain the 155 RV visa. However according to the guidelines, DIAC will only grant her a one year RRV. In this case if Jane intends to keep working overseas for a longer period there is little benefit in applying for a RRV at this time. It is important to note that without the property there is little chance of Jane obtaining a 155 RRV visa for she will have no other close tie to Australia.

As long as Jane keeps visiting Australia for holidays or to check up on her rented home, declares the rental income and lodges tax returns in Australia, then her option to gain the one year RRV should always be there.

If Jane decides that it is a backward step financially to buy the property in Australia then the only other prospect in gaining a one year 155 RRV would be to have the company where she works, offer her a job again in Sydney. Then once back in Australia and her life is established here again, keeping her permanent residency should never be a problem.

Remember that when you are offshore and applying for a RRV, you are meant to have the imminent intention to return to Australia to live as a permanent resident. It is not designed to be granted just so you don't need to apply for tourist visas to return to Australia. Any permanent residency visa has the requirement that you intend to reside permanently in Australia. If a case officer believes that this is not your intention then they can refuse a visa.

All the RRV provisions discussed so far rely on the fact that you have spent at least one day in Australia within the last 5 years of the application being lodged. If you cannot meet this basic provision then there are further guidelines which explain how it is still possible to be granted an RRV again. We will discuss these next week in Part 3 of our RRV series.