Eligibility for an Australian return visa

Australian Return VisaBy Mubeen Khadir & Sam Campbell, Aitken Partners, Lawyers, Melbourne. 

Looking to return to Australia?  Whilst permanent residence gives a person a right to remain permanently in Australia they will only provide for a limited permission to travel (usually up to five years).  Where an Australian permanent resident has travelled overseas they will need to have a return visa to allow them to re-enter Australia.  They should ensure their last permanent visa is still valid to allow them to do this.  If it is not, then they will need to apply for a resident return visa.

A resident return visa is a permanent residency visa allowing an Australia permanent resident a travel facility to depart and re-enter Australia for 5 years from the date of grant.

There are currently three types of resident return visas:

  1. Subclass 155 Return (Residence) visa – a permanent visa with a multiple re-entry travel facility for up to 5 years;
  2. Subclass 157 Return (Residence) visa – a permanent visa with a multiple re-entry travel facility for up to 3 months; and
  3. Subclass 159 Resident Return (Temporary) visa – a temporary visa for persons offshore (who cannot prove they were or are a permanent resident) to travel to Australia, for up to 3 months, to allow them to submit a permanent visa application.

A person’s present circumstances (and time spent in and outside of Australia) will have a large bearing on what resident return visa they can and should be applying for.

To obtain a subclass 155 visa, a person will need to show they have both been physically present in Australia for at least 2 of the last 5 years immediately prior to applying for this visa whilst they were a permanent resident or Australian citizen.

To obtain a subclass 157 visa, a person will need to show substantial ties to Australia – be they business, cultural, employment or personal ties which are of benefit to Australia and they have not been absent from Australia for 5 years or more (unless they can show compelling reasons they have been so absent).

Substantial ties are said to be ties of a substantial nature – being of considerable real, personal or financial value which are of benefit to Australia.  For example, business ties could include showing substantial ownership and management involvement in an Australian business or business with connections to Australia.  These business ties could then be shown as substantial by looking at the employment, contribution to the Australian economy or significant benefit to the Australian community they have wrought.

A compelling reason is intended to connote a strong test on the person applying to show the reason for their absence was forceful on the person.  Examples could include severe illness, work or study commitments requiring their absence but of benefit to Australia or the person has been caught up in a natural disaster, political uprising or similar event preventing their travel.

If a person is looking to return to Australia they must be careful what they do and what visa they seek to apply for.  Where a person is granted an alternative visa (such as a tourist visa) to allow for their re-entry to Australia their permanent visa will cease to have affect under law and they would need to reapply for permanent residence to return on a different ground.

We recommend that you always seek migration advice before taking any steps that may negatively impact your migration status.

Where a person held an old style permanent return visa called either an Authority to Return or Return Endorsement (ATR/RE) (which were issued between 1 March 1976 and 31 December 1986) their visas could still be valid.  In that case, they should consider getting recognition and record of this travel authority on the Department of Immigration and Border Protection’s (DIBP) system as a so-called BF111.  The issue with the ATR/RE is they may only be evidenced in your passport and the DIBP will not know from their own systems whether or not one was ever granted.  Applying for a resident return visa in this situation could result in your ATR/RE ceasing by operation of law.

Again, always seek migration advice before taking any steps that may impact upon your existing migration status.

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