You may think that being an Australian permanent resident, you have an automatic right to return to Australia from overseas. But this is not the case.
Permanent residency is also not ‘forever’ as the permanent residency visa may be cancelled.
To maintain your Australian permanent resident status, you must ensure that you:
1. meet the requirements of your visa.
2. either meet a residence requirement in Australia or show that you have close ties to Australia.
3. are not involved in activities or behaviour that are considered criminal, not comply with public interest or fraudulent.
You must also be sure to check that your travel facility has not yet expired. The Permanent Residency Visa may be cancelled thereby affecting the application for Australian Citizenship if the Resident Return Visa expires and the resident is out of the country. It is better to re-apply for a Resident Return Visa than to enter Australia on another visa. If it is revealed that the Resident has entered Australia on another visa, like the Tourist Visa for example, the Permanent Resident Visa is likely to be cancelled. The resident then will not be able to apply for an Australian Citizenship in the future.
Meeting visa requirements
Some visas such as the Business Talent Visa (Subclass 132) provides a direct path to permanent residency. If you have been granted the 132 visa, to ensure that your visa (hence your permanent residency) is not cancelled, you must meet the conditions of this visa including:
– obtaining a substantial ownership interest in an eligible business in Australia;
– utilising your skills to manage your business;
– reporting on your business activities in Australia after 2 years;
– commitment to ongoing business or investment activities in Australia; and
– obeying all Australian laws
If you hold the Business Innovation and Investment (Permanent) visa (subclass 888), the main requirements to keep your permanent residency in Australia include:
– commitment to ongoing business or investment activities in Australia;
– obey all Australian laws; and
– meeting residence requirements in Australia or show that you have close ties.
It is therefore important to understand and adhere to the requirements of your visa so that you do not lose your Australian permanent residency status.
Meet residence requirements in Australia or show that you have close ties
Whilst your permanent visa will allow you to remain in Australia indefinitely, it only gives you the right to travel in and out of Australia for 5 years. Your right to re-enter Australia will depend on the how long you have left on your travel facility. The travel facility can be found on your visa grant notification.
If you wish to continue travelling to and from Australia after the initial 5-year facility, you must either:
– Obtain a Resident Return Visa (RRV); or
– Apply for Australian Citizenship
Australian citizenship is the preferred option as it will entitle you to always re-enter Australia. As an Australian citizen, you could also obtain an Australian passport.
To qualify for Australian Citizenship, you must meet strict residence requirements. If you don’t meet these, then the Resident Return Visa (RRV) would be the next best option.
5-Year Resident Return Visa (RRV)
If you have lived in Australia for at least 2 years in the last 5 years, you will be able to obtain a 5-year travel facility.
12-Month Resident Return Visa (RRV)
If you are unable to live in Australia for at least 2 years, the best option would be a 12-month Resident Return Visa.
For the 12-month RRV, you will need to demonstrate substantial business, cultural, employment or personal ties of benefit to Australia. This would typically be:
– Business – e.g. owns an Australian company
– Cultural – e.g. program listing your artistic or cultural performances
– Employment– e.g. employment contract with an Australian company
– Personal – e.g. have an Australian partner and child or that you have established residence here, for instance leased accommodation, enrolled children in school
You would have to provide documents to evidence your ties.
If you are eligible for a resident return visa, and your spouse or dependent does not meet the residency requirement (i.e. 2 out of 5 years), they can still apply for the resident return visa. The duration of the family unit members’ RRVs would generally be 12 months even if you have a 5-year RRV. If your RRV is expiring sooner than this, then your family unit members’ RRVs will expire on the same date as yours.
Absence from Australia – Compelling Reasons
If you have been absent from Australia for more than 5 years, you will need to show that you have compelling reasons for this absence.
The term compelling is not defined in the Migration Act. However, it implies that the reason for departing Australia is outside the control of the applicant. Some examples of compelling and compassionate reasons include:
1. Severe illness or death of an overseas family member
2. Work or study commitments
3. Living overseas with an Australian citizen partner
4. Complex or lengthy medical treatment preventing travel
5. Involve in legal proceedings, such as sale of property or custody, and the timing is beyond the applicant’s control
6. Natural disasters or political uprising preventing travel
7. Significant personal events for example waiting up to 12 months for a child to complete their education
The COVID-19 pandemic has prevented people from travelling and is beyond the applicant’s control therefore could be a compelling and compassionate reason (discretionary) for not being able to return to Australia on time.
Obtaining Australian Permanent Residence is a difficult, costly and lengthy process. Being able to extend your PR is equally important. Make sure you check your visa grant letter for your travel validity before you travel.
If you would like assistance in extending your PR, please book a consultation with Mr Michael Cradock.