Resident Return visa (RRV) – Responding to Department Requests

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Some of our clients have recently received Department requests after the lodgement of Resident return visa applications, where the Department has asked for:

 

  1. Evidence of your reasons for your continued absence from Australia
  2. Compelling reasons for leaving Australia
  3. Reasons for absence for more than 3 months in the last 5 years
  4. Evidence of your intention to reside in Australia permanently and imminent intention to return
  5. Evidence of imminent intention to reside in Australia

 

The Department asking for items 1 to 3 isn’t that unusual, as these are part of the legal requirements that need to be satisfied (and whether you need to satisfy some or all of these requirements will depend on the circumstances of your Resident Return visa application).

 

However, the Department should not be asking for items 1 to 3 if the visa applicant’s circumstances are as follows:

 

  1. In Australia for at least 1 day in the last 5 years period before the lodgement of your Resident Return visa application, as a permanent residency visa holder
  2. You are currently in Australia as a permanent residency visa holder, or you last departed Australia as a permanent residency visa holder
  3. You have strong ties with Australia that should satisfy the requirements for the 1 year Resident Return visa, such as:
    • Living with your Australian citizen partner and/or dependent Australian children in Australia or overseas
    • Having Australian citizen or permanent resident partner living in Australia, with your dependent Australian children if applicable, while you are living overseas
    • Having minor or dependent Australian citizen children living in Australia, or overseas with the visa applicant as the primary carer and guardian
    • Living and settled in Australia on a long term and permanent basis when you lodge your application

 

If you were in Australia when you lodged your Resident return visa application, then you need to satisfy the following requirements under Subclause 155.212 (3A):

 

(3A) The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:

(a) has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

(b) has not been absent from Australia for a continuous period of 5 years or more since:

(i) the date of grant of the applicant’s most recent permanent visa, unless there are compelling reasons for the absence; or

(ii) the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence.

 

Hence, you satisfy the above requirements if:

 

  • The applicant meets the requirements of this subclause if the applicant is in Australia
  • Has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia
  • Has not been absent from Australia for a continuous period of 5 years or more since the date of grant of the applicant’s most recent permanent visa, unless there are compelling reasons for your absence

 

Hence, the requirements under Subclause 155.212 (3A) do not ask you to demonstrate any of the following if you have sufficient substantial ties, and you have not been absent from Australia for a continuous period of 5 years or more since the date of grant of your most recent permanent visa:

 

  1. Evidence of your reasons for your continued absence from Australia
  2. Compelling reasons for leaving Australia
  3. Reasons for absence for more than 3 months in the last 5 years
  4. Evidence of your intention to reside in Australia permanently and imminent intention to return
  5. Evidence of imminent intention to reside in Australia

 

 

If you were outside Australia when you lodged your Resident return visa application, then you need to satisfy the following requirements under Subclause 155.212 (3):

 

(3) The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and the applicant:

(a) has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence, and the applicant:

(i) holds a permanent visa; or

(ii) last departed Australia as an Australian permanent resident; or

(iii) last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship; or

(b) was an Australian citizen, or an Australian permanent resident, less than 10 years before the application, and has not been absent from Australia for a period of, or periods that total, more than 5 years in the period from the date that the applicant last departed Australia as an Australian citizen or Australian permanent resident to the date of the application, unless there are compelling reasons for the absence.

 

Hence, you satisfy the above requirements if:

 

  • The applicant meets the requirements of this subclause if the applicant is outside Australia
  • Has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for your absence
  • Holds a permanent visa, or
  • Last departed Australia as an Australian permanent resident or citizen, or
  • Was an Australian permanent resident or citizen, less than 10 years before the application. And the applicant has not been absent from Australia for a total period of more than 5 years cumulatively in the period between the following dates:
    • Date that the applicant last departed Australia as an Australian permanent resident or citizen, and
    • Date that the visa applicant lodged his or her Resident return visa application

 

Hence, the requirements under Subclause 155.212 (3) do not ask you to demonstrate any of the following if you have sufficient substantial ties with Australia, last departed Australia as a permanent residency visa holder, and you have not been absent from Australia for a continuous period of 5 years or more immediately before the date of application:

 

  1. Evidence of your reasons for your continued absence from Australia
  2. Compelling reasons for leaving Australia
  3. Reasons for absence for more than 3 months in the last 5 years
  4. Evidence of your intention to reside in Australia permanently and imminent intention to return
  5. Evidence of imminent intention to reside in Australia

 

The Department is not allowed to add requirements that are not part of the relevant legal requirements, under the Migration Regulations 1994. If you feel that the Department is asking you to provide items and documents that are beyond the legal requirements for your visa, then you are allowed to refer the Department to the relevant law and requirements that you are trying to satisfy with your application. We can assist with responding to such Department requests following the lodgement of your Resident Return visa application.


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