When you receive your first permanent residence visa you will note on the label it states "the holder is permitted to remain in Australia indefinitely". This means exactly as it sounds. You may remain in Australia as a permanent resident until the day you leave this planet for a better existence.

However even though you are still a permanent resident, the initial travel permission, to leave and return to Australia, will expire 5 years from the grant of your original PR visa. This means if the travel bug bites and the first 5 year travel permission has expired, you will need permission visa to re-enter Australia and that is what the Resident Return Visa (RRV) is for, the right to return.  

Left Australia and forgot your PR is about expire? 

It often happens that people leave Australia as a permanent residents and that PR visa expires while they are still offshore. When this happens you will no longer be regarded as an Australian Permanent Resident. In this case as a former Australian Permanent Resident you will need to apply for a RRV to gain permission to return to Australia if you wish to enter as a permanent resident.

In many instances people leave Australia completely forgetting that their PR visa will expire when they are away. They hop on the plane to return home only to be shocked to be told at the DIBP clearence counter that their  visa has expired.

In these cases the DIBP can issue you a 773 Border visa which then allows you to enter and apply for your RRV in Australia.

One of the  conditions in obtaining the 773 visa is that you must convince the DIBP that you have grounds to obtain a RRV visa;  

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For example when had originally left you had already met the standard residential requirement (below) to be granted a RRV.

Now one would expect from the DIBP is that when you check out to leave Australia they would notice that your travel permission is about to expire and they would ask you how long are you going for. Sadly such common sense public service courtesy is sadly lacking in the department so don't expect them to remind you as you leave. 

Lets have a look at the basic requirement first.

The Basic 730 day Minimum

To gain your RRV visa easily you will need to meet the basic criteria of having spent at least two years in Australia in the five years immediately applying. This two year period does not have to be consecutive and can be a mixture of 730 days spread over the 5 years. DIBP's computer system has a record of your every exit and entry to Australia so it will automatically know if this 730 day criteria has been met.   

The DIBP states; "The intention of the 5 year travel facility is that those permanent residents living in Australia are provided with more beneficial travel arrangements than those permanent residents who are living outside Australia."  

What if you have at least one day but not 730 days?

Example 1

If you are in Australia, then one option is to remain in Australia until the 730 day period has been accumulated. At this time a RRV 155 visa (5 years travel permission) can then be applied for without any difficulties. For example;

What can Jim do?  

Jim just needs to remain in Australia and he will continue to be a permanent resident even though his travel permission has expired. When the 730 day requirement has been met he can apply for a RRV visa if he needs to travel again. Remember the 730 days is calculated back in time (five years) from when the RRV application is made so Jim needs to check this carefully.

Note 

Anyone can enter Australia even if it is just one day before their travel permission on their PR visa expires. They can then remain in Australia indefinitely as a permanent resident.

Example 2

Jim has found a new job in Australia but his father has turned seriously ill and he needs to return to England to see him one last time before he may pass. However Jim has not yet accumulated his 730 days he needs for to apply for a RRV so he can travel. What can he do?

What can  Jim do now? 

Since Jim needs to travel overseas again before this 730 are ready he can still apply for his RRV visa but there will be an assessment of what DIAC states "Substantial ties of benefit to Australia". These ties must be of a beneficial nature that contributes to what DIBP describes as Australia's  "well-being".

Now this seems is a bit of an odd concept but nevertheless DIBP has some guidelines in how such an assessment of this "well-being" can be made. Now just in case that Jim may not meet these substantial ties listed below so he has another option to apply for a three month RRV visa subclass 157. This is because Jim can be assessed has having compelling and compassionate reasons for wanting to leave Australia. Read more about the three month 157 RRV visa below.

Substantial ties of benefit to Australia

For those applying for a RRV visa and do not meet the 730 days need to rely on the acceptance of the  "substantial ties" provision. When being assessed under this criteria DIBP will only grant a one year RRV not the usual five year RRV. DIBP explains this in their guidelines;

"The intention of 155.212(3) and (3A) is to give officers discretion and flexibility to grant a visa with a 1 year travel facility to applicants who have substantial ties with Australia and are contributing to Australia's well-being, but who have not spent sufficient time physically present in Australia in the past 5 years to satisfy the physical residence criterion."

In assessing this criteria the case officer will also consider what type of PR visa was granted to you in the first place.

"The benefits that accrue from Australia's migration program vary depending on the visa stream. When assessing substantial ties of benefit to Australia for the purpose of an RRV application, it is important to consider some of these differences:

Business visas recognise that the intention of the visa holder was to conduct or promote their business interests in Australia. Such activity does not necessarily require the business owner to live in Australia as long as the applicant has an active and significant role in the business. For example if the business is actively trading in Australia there would be evidence this as well as evidence of regular visits to or contact with the business or its interests in Australia.

Family stream visas recognise the value of the family relationship of the visa holder. In the context of close family relationship visas such as the partner visa, the intention is to allow the family unit to live together. Therefore a subsequent decision by an applicant to live overseas with their Australian citizen partner is the type of decision a reasonable person would generally make. Such a situation should be given considerable weight when deciding RRV applications, as their Australian citizen partner has an automatic right of entry to Australia.

Skill stream visas recognise the holder has skills that are needed in Australia. It is a reasonable expectation that such applicants would have moved to Australia during the validity of their initial visa. If they have not yet resided in Australia, they should be able to demonstrate an imminent intention to domicile in Australia. It also needs to be recognised that if applicants have lived and worked in Australia, a benefit to Australia should have been realised from their migration. For example, it is not unreasonable that such people, who have already lived and worked in Australia, would seek to further enhance their skills and experience in the global market. Generally, if there is an intention to return to Australia with their skills there would be evidence of them maintaining their ties with Australia, such as maintaining their awareness of the Australian market in their area of expertise."

One can read from these extracts that DIBP does place some importance in being flexible in assessing the substantial ties criteria. In general though they consider that the longer the time that has been spent outside of Australia then the more difficult it may be for applicants to demonstrate that the ties they have here are "substantial".

The term "substantial ties" are not covered in the law but DIBP has its own guidelines that case officers should consider before a RRV is to be granted on this basis. PAMS's states;

"whether the applicant has business, cultural, employment or personal ties with Australia and, if so,

are the ties substantial - that is, are the ties considerable and do they have real worth or value (this part of the criterion is about the quantity and value as they relate to the applicant and can be personal or financial) and

are the ties of benefit to Australia, - this part of the criterion requires that there is a demonstrable benefit to Australia arising from the substantial tie(s).

Officers should consider the whole of an applicant's relevant ties with Australia and determine whether cumulatively an applicant's substantial ties are of benefit to Australia."

Unfortunately there is limited space in this newsletter to cover the further guidelines which cover these business, cultural, employment or personal ties. We will cover this next week.

Applying for the RRV Offshore

If you are offshore and you need to apply for your RRV then it is still straight forward to have the visa granted as long as those 730 days have been met. Of course you do not have to wait until your PR visa expires, it can be done any time before hand with the 730 days accumulated.

If you have less than 730 days but at least one day in the last five years then you can apply for the 155 RRV visa but you will be then be assessed under the "substantial ties" provision. If this is accepted then a one year RRV visa will be granted. Unfortunately if it not accepted then you have no review right to appeal this decision. Only applicants who are onshore when they apply have the right to appeal a negative decision to the Migration Review Tribunal.

If you have less than 730 days but there is little chance of meeting the "substantial ties" guidelines then the three month 157 RRV visa will be your best option however it is not straight forward.

Three Month 157 RRV

This visa is designed specifically for those who have cannot meet the 730 days criteria and cannot meet the "substantial ties" provision. Usually for people who have gained their permanent residency but needed to leave Australia before they had a chance to establish a "substantial tie". The basic criteria is to have at least spent one day in Australia in the last five years before applying for the visa.

However there is more to it that just meeting the one day in five years rule. Applicants must show that they have compelling and compassionate reasons for;

If applying within Australia - reasons for wanting to leave Australia and return (such as Jim's example above).

If applying outside Australia - reasons for when they last left Australia.

Now in Jim's case above where is in in Australia and his father is sick then it is likely he would meet this provision and be granted the three month RRV. However if you are outside of Australia (offshore) then it will much more difficult to demonstrate that when you last left Australia these compelling and compassionate reasons existed so you decided you had to leave.

This may be difficult if it is some years back since you left Australia and have not returned. You then would have to supply some documentary evidence of what those compelling and compassionate circumstances were and given the time that has past, that may be quite difficult.

Secondly if it has been more than three months since you last left Australia then you would have to demonstrate that it was those compelling and compassionate reasons why you have not returned to Australia after the initial 3 months has passed. Policy on this issue states;

"This criterion would not normally be satisfied if the applicant initially had compelling and compassionate reasons for leaving Australia (as required under 157.212(b)), but the applicant then chose to remain overseas after this reason ceased to exist or no longer required their absence (for example, they took up employment or stayed for a prolonged holiday)."

Next week we will look at examples from DIBP's guidelines of what would meet the "substantial ties" criteria.

We shall also later in this series examine the guidelines in place if you have been absent from Australia for more than 5 years.

Karl Konrad
Managing Director
Australian Immigration Law Services