Absence of More Than 5 Years
In Volume Volume 234 and Volume 232 we covered the requirements for the Resident Return Visa, primarily the 155 subclass category.
Examples were provided in these newsletters regarding the basic requirement of meeting the 730 days in the 5 years before the application was lodged and the close ties provision DIAC examines if you have less.
Occasionally applicants have circumstances back home whereby they have not been able to return to Australia for more than 5 years but they still wish to apply for a RRV. Today we will discuss the DIAC guidelines that would cover individuals who face such an obstacle for a RRV application.
Absence for more than 5 years from Australia
It is possible where applicants for a RRV can meet the substantial ties of benefit to Australia requirements we discussed in Volume 234 but they have been away from Australia for more than 5 years. In these circumstances they would have to prove to DIAC that there have been compelling reasons for their absence.
Technically there is no limit to the time they have been away from Australia. You must however demonstrate both the close ties and the compelling circumstances, not just one.
Interestingly the mechanics of the DIAC assessment of this criteria varies depending if the applicant has returned to Australia and lodged their application whilst here or whether the applicant is lodging the application whilst they are still offshore.
If possible it is recommended to lodge an application onshore if there is access to a temporary visa such as a Tourist. However many countries do not have easy access to this visa so it possible only an offshore application can be lodged. Keep in mind that if a tourist visa is issued you cannot apply within Australia for a RRV if a "No Further Stay" condition is imposed on that visa.
Since the term compelling is not actually defined in the law DIAC has a number of guidelines to assist case officers in making their decisions;
- severe illness or death of an overseas family member
- work or study commitments by the applicant or the applicant's partner that are of a professional nature, in circumstances where the acquired experience results in a benefit to Australia.
- the applicant is living overseas in an ongoing relationship with an Australian citizen partner
- the applicant or the applicant's accompanying family members have been receiving complex or lengthy medical treatment preventing travel
- the applicant has been involved in legal proceedings such as sale of property, custody, or contractual obligations and the timing was beyond the applicant's control
- the applicant has been caught up in a natural disaster, political uprising or other similar event preventing them from travel or
- the applicant can demonstrate they have been waiting for a significant personal event to occur that has prevented them from relocating to or returning to Australia.
The period of time for any such event would have to be reasonable in its context, for example:
- a 12 month delay while waiting for a dependant child to complete their schooling or a tertiary qualification is likely to be a decision that a reasonable person, facing the same set of circumstances would make
- waiting to relocate to Australia for several years until a dependant child completes their schooling or course of study would not generally be considered to be a decision a reasonable person would make.
This real life case scenario will demonstrate the difference between an onshore and offshore application for 155 RRV when the applicant has been absent from Australia for more than 5 years before they apply.
Jane obtained her permanent residency of Australia 10 years ago. Her only brother is in Sydney, is an Australian citizen and married and has two children. After her PR was granted she lived in Australia for 12 months but had to return home to the UK for her father became serious ill. Shortly after returning home her father passed away but the stress of that event caused her mother to have a stroke and was hospitalized. When her mother came out of hospital she needed constant care 24 hours per day and the local government could not provide this level of care.
Jane cared for her mother for 8 years before she passed away from complications caused by the stroke. Her brother could not do this for he had his own family to look after. During this time she married overseas and started her own family and had two children who are now in primary school. During all of this time she has not returned to Australia.
It is now two years since her mother died and Jane and her husband have decided they would like to live in Australia as a family. Jane now has two options to consider in applying for a RRV 155 visa. One is to travel to Australia with her family and visit with her brother. Whilst there apply for the 155 RRV. The other is to apply for the RRV whilst still in the UK.
Applying within Australia?
Since Jane is from the UK, she can easily obtain a three month electronic tourist visa upon her arrival. All of her family could obtain the same visa.
Jane has her only brother in Australia and therefore is able meet the close ties provision of the RRV requirement. However since she has been absent from Australia for more than 5 years since the grant of her PR visa, she needs to demonstrate there were compelling circumstances that caused her absence.
Jan was compelled to look after her mother for more than 5 years since her brother was not in a position to do so and the local government could not provide the 24/7 assistance she needed. Therefore Jane is ok on this issue.
Since Jane lodged her RRV onshore she only needs to demonstrate that these compelling circumstances existed for a five year period, any five year period in the past. The compelling circumstances do not need to have continued to exist right up until the RRV visa was lodged. Jane stands a good chance a one year RRV will be granted to her.
Once Jane obtains her PR status again she will be in a position to sponsor her family under the Australian Partner visa program to either remain in Australia from the tourist visa or they can return to the UK and it can be applied for from there.
If Jane applies offshore for her RRV visa yes she would need to demonstrate that the compelling circumstances not only covered a 5 year period, but that these circumstances existed up to the time her RRV was lodged.
Since her mother passed away more than 2 years ago there is a problem. According to the guidelines above, it may be accepted that a child education can be considered as to delaying a RRV application but normally only till the end of a school year. Since two school years have passed DIAC may refuse her application since the compelling circumstances no longer exist.
One can see then that when applying for a RRV after such a long time since the original PR has gone there are important issues which must be carefully explored. There is little doubt that professional advice from a registered Migration Agent is obtained from anyone who is considering applying for an RRV where there are complications.