Resident Return Visas

 

Overview

Australian Resident Return Visas

When a person is granted a permanent visa, that visa gives them the right to remain permanently in Australia. The visa also provides permission to travel into and out of Australia any number of times for a certain number of years (usually five) from the date the visa was granted.

A re-entry facility is granted automatically with all permanent visas. Once this re-entry facility expires, the person must have a ‘return visa’ before they will be allowed to re-enter Australia.

Permanent residents intend­ing to travel overseas, or who are overseas and are planning to return to Australia, should check that their last permanent visa is still valid for re-entry to Australia. If not, they will need to apply for one of the resident return visas discussed below.

Former Australian permanent residents, and Australian citizens who have lost or renounced their Australian citizenship, can also apply for resident return visas and resume their permanent residence status.

However, former permanent residents whose last per­manent visa was cancelled are not eligible for these visas.  If former permanent residents are granted a Provisional Resident Return visa only, they will become a temporary resident and need to apply again for a permanent visa on their return to Australia.

 

Type of Resident Return Visas

There are three types of resident return visas:

  • The Return (Residence) (Class BB) (Five Year Resident Return) subclass 155 visa – this is a permanent visa with a multiple entry travel facility of up to 5 years;

  • The Return (Residence) (Class BB) (Three Month Resident Return) subclass 157 visa – this is a permanent visa with a multiple entry travel facility of 3 months;

  • The Resident Return (Temporary) (Class TP) (Provisional Resident Return) subclass 159 visa – this is a provisional (temporary) visa for persons offshore who cannot prove they are or were a permanent resident. It allows a single entry to Australia for a stay of three months to allow sufficient time to submit a permanent visa application (for example, under Class BB) and        supporting documents confirming their permanent resident status.

 

Eligibility Rules

The eligibility rules for resident return visas vary according to how long the applicant has actually lived in Australia, how long they have spent outside Australia at the time they apply for the resident return visa, and whether they are inside or outside Australia at the time when they apply for the resident return visa.

Permanent residents who remain overseas for more than five years at a time may not be able to get another resi­dent return visa. Such applicants must show that they have substantial busi­ness, cultural, employment or personal ties with Australia and that they have ‘compelling reasons’ for their absence, or they will lose their permanent residency.

Without a resident return visa they cannot re-enter Australia on a permanent visa, and if they are granted an alternate visa (for example, a visitor visa) in order to enter Australia, their permanent visa will cease to be in effect by operation of section 82 of the Migration Act.

A person who has lost their permanent residency and who is unable to qualify for a resident return visa and who wishes to return to live in Australia, will have to apply again to migrate. To succeed the applicant must meet all the relevant criteria for a permanent visa.

Unlike other visas, a person does not have to be ‘usually resident’ in Australia to be a permanent resident for the purposes of a resident return visa.

Applicants for the Resident Return subclass 155 visa who have spent less than two out of five years in Australia before making their application will be granted a visa valid for only one year.

Such applicants still have to meet the 'close ties to Australia' criteria.

 

Departmental Policy

Departmental policy is now as follows:

  • to obtain a five-year visa, physical presence in Australia is required. The applicant must have been physically present in Australia for a total of at least two years in the last five years and during that time was a permanent resident who did not hold a temporary visa (other than a border visa or an ETA) or a bridging visa: see clause 155.212(2) of Schedule 2 of the Migration Regulations.

  • to obtain a one-year visa, substantial ties with Australia are required. The applicant must have substantial business, cultural, employment or personal ties which are of benefit to Australia and has not yet been absent from Australia for five years or more unless there are compelling reasons (see clause 155.212(3)(a)and 155.212(3)(b) for offshore requirements and clause 155.212(3A) for onshore applicants).

  • if the applicant is a 'member of the family unit' of a person who has met/meets clause 155.212(2), 155.212(3) or155.212(3A), then the applicant is to be granted a Resident Return visa with the same validity as the Resident Return visa held by their family head: see reg 1.12.

    

Family members

For the Five Year Resident Return visa (155), and Three month Resident Return visa (157), each family member must make a separate application, pay the visa application charge and meet the primary criteria. For the Provisional Resident Return 159 visa, while combined applications are allowed for those sharing the same passport, all applicants must also meet primary criteria.

However, the primary criteria for a Five Year Resident Return visa or Three Month Resident Return visa is designed to allow the visa to be granted to a person who is an Australian permanent resident, a former resident or citizen, and who is a member of the family unit of a person who has been granted a resident return visa (which is still in effect), or who has applied for one and meets the other criteria for that visa.

 

Health and character

Applicants for a resident return visa do not have to pass the health test or satisfy any of the other Schedule 4 Public Interest Criteria. However, even though the Schedule 4 "character test" does not apply, section 501(1) of the Act does give the Minister power to refuse (or cancel) a resident return visa on character grounds.

 

Review rights

If a person applied for a resident return visa while in Australia and the visa was refused, they have the right to have that decision reviewed by the AAT.

Applicants who applied outside Australia do not usually have a right of merits review. However, if the applicant has a parent, spouse, brother, sister or child who is in Australia as an Australian citizen or permanent resident, then that relative has a right to apply to the AAT for review of the refusal decision.

There are strict time limits for applying for review.

 

Evidencing and re-evidencing of Resident Return Visas

Australia does not require holders of a resident return visa to have physical evidence of their visa - such as a label or stamp - in their passport to enter or remain in Australia.  This is because details of the visa are held on Australian immigration computer systems. 

While many countries have access to these Australian immigration computer systems, some countries do not and will require evidence of an Australian visa in the passports of people travelling through them to Australia.  If Resident Return visa holders are travelling through countries which may require an Australian visa label or stamp in passports, they should access their visa grant details via the Department's Visa Entitlement Verification Only ("VEVO") system.

This is a general overview of Australian Resident Return Visas. We encourage you to make an appointment with Putt Legal to discuss your particular circumstances.