I still call Australia home…Are you a permanent resident about to go overseas?
The recent opening of Australia’s borders has meant different things to different people, for some it meant being able to come home after a long two years of geographic isolation. For others, it meant finally being able to blow this joint and see the world. Either way lots of people finally got a chance to speak to family and friends without the blessing that is Australia’s NBN infrastructure.
But for those of you who hold permanent residency in Australia, after two years of travel not being an option, maybe you’ve forgotten the best bit? Paperwork of course.
I thought permanent means permanent.
Only if you never leave.
Australian permanent residents don’t have an automatic right to return to Australia from overseas indefinitely, and you’ll need to check your visa conditions to ensure that your permanent resident visa still has a valid ‘travel facility’ before attempting to leave or re-enter Australia.
Typically, a travel facility is applied to your permanent visa on its granting, allowing you to leave and re-enter Australia within restriction, so long as it’s within the validity period of 5 years.
After that 5 year period ends, it’s time to scroll through your passwords and dust off the old immi account (or engage professionals to assist you), because you’ll need to apply for a Resident Return (Subclass 155) visa (RRV).
What are the requirements?
For most people it will be a simple process, if:
You’re a current Australian Permanent Resident;
You’ve resided in Australia for a total of at least 2 of the last 5 years as a permanent visa holder;
You haven’t changed your name; and
You haven’t committed any crimes
If you are in the above category, and provided everything’s in order, you will be issued with another RRV carrying a five year travel facility attached to it.
What if I couldn’t be in Australia for 2 out of the last 5 years due to COVID border closures?
Your absence from Australia during this period will not necessarily prohibit you from obtaining an additional RRV. Rather the process is more complex and requires you to meet additional criteria. Depending on your particular circumstances, you may only get a limited travel facility if successful.
For example, if you were outside of Australia and unable to meet the standard residency requirement, you will now need to provide documentation demonstrating that you have substantial ties (which are beneficial) to Australia. There are 4 categories of substantial ties:
Business ties;
Cultural ties;
Employment ties; and
Personal ties.
If immigration assesses your circumstances and is satisfied with your ties to Australia, a RRV with a 1 year travel facility will be issued.
As a general rule of thumb, the longer the period of absence from Australia, the greater the additional criteria to be met. Following on from this, if you’ve been absent from Australia for more than 5 years, you now need to provide documentation regarding the above, AND documentation establishing compelling and compassionate circumstances which justify being outside of Australia for so long. The greater the absence, the greater the hurdle to demonstrate that your reasons are at the threshold of ‘compassionate’ and ‘compelling’. You might only receive a 3-month travel facility.
Oh dear, I haven’t been in Australia for 2 of the last 5 years.
A common complaint about lawyers is that they never give a straight answer, and I’m guessing you’ll want to know what you should submit to establish your substantial ties to Australia as well as compassionate and compelling reasons?
It depends.
The most important thing to remember is that the decision to grant your RRV is discretionary, and being able to tick off a single substantial tie, or a single compelling and compassionate reason may not get you over the line. So, if this is something that matters to you, the best thing to do is to speak to an immigration professional, who will look at the totality of your circumstances, compare those circumstances to the legislation, case law and current policy and then craft the strongest possible case in the interests of getting your visa granted.
Fine, it just sounds better to avoid this whole mess.
It is, so where possible you should seek to ensure that you keep an eye on the dates of your travel permissions, and maybe even consider transitioning to Australian Citizenship (once eligible), as then you’ll never need to open your immiaccount again.
But we also understand that sometimes even the most careful planning and diligence is still subject to the unknown, the unexpected and the unfortunate, and that’s exactly why we’re here.
How can Agape Henry Crux Help You?
In addition to what the law does and doesn’t allow you to do, there are also practical considerations that may mean that travelling overseas jeopardises your visa application. If you want to find out more about the risks with travelling overseas, please not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.