[bronmorgan]

Hi - our situation is embarrassing and I know we should have been on top of this. My husband has been in Australia on a PR visa (based on marriage to me) for 5 and a half years (entered Sep 2012). We had absolutely no idea that his freedom to travel was not permanent and would expire after 5 years.

As a result, we are now (Dec 17th, 2017) in the US visiting family and have realised that we should have applied for a Resident Return Visa (RRV) for him before leaving - but we are already here.

From reading around, I think it is fine for us to still apply online from here (he has been resident and employed in Australia the whole 5 years apart from occasional overseas holidays), but it may well take longer to process than our air ticket (we're supposed to fly back 3 January).

If anyone has any tips on speeding up the process (could we attach our air ticket for example to the application) and also any tips on alternative ways to make it home, we'd be really grateful (the rest of us are all Australian citizens).

In particular, if he were to apply for an ETA tourist visa in roder to go home and then reapply for the RVV from Sydney, would that undo his underlying permanent residency status? From what I understand, that status really is permanent, it's just the permission to travel overseas that is not.

I can't tell you how foolish we feel for not having been on top of this, but would be really grateful for any advice - we're also happy to seek professional private advice from a reputable migration agent if anyone has recommendations. We are planning to submit the online application for the 155 visa first thing Monday morning 18th December Australia time from here in the US.

There is one more thing puzzling us - he is a dual national and his PR was granted on his UK passport so we'll use that - but the online form has 4 options for British citizens - British citizen, British overseas citizen, British overseas national, British overseas territory citizen. We know we're not the fourth, but what is the difference between the 2nd and 3rd? - we have UK passports and we vote from Australia as British overseas citizens so I suppose we're no 2, but I didn't know that no 3 existed.....

Thanks in advance -
Bronwen and Jim

 

[Mish]

I suggest speaking with a registered migration agent. Here is the list that post on this forum regularly: http://www.australiaforum.com/visas-immigration/252474-registered-migration-agents.html

It is only the travel rights expire on the PR. Applying for a RRV at this time of year is probably not going to be fast, but you never know your luck. The issue is that as you are probably aware alot of people will take time off between Christmas and New Year so DIBP are probably will be on skeleton staff soon, if not already.

I would be speaking with a migration agent ASAP, as I unsure if he comes back on an ETA if that then means that he won't be able to work until the RRV is granted.

 

[ampk]

Yes the agents that often post on here are all very good and one is active today.

 

[JandE]

I was in that position some years ago. UK passport holder, PR for 15 years, but back in UK and the RRV expired.
My wife at the time had Australian citizenship, as did my daughter.

I didn't have the luxury of asking on a forum, so I just came back in on a tourist visa, the 24 hour process one.

Had an interview at an Immigration office, and all was OK again. Presumably due to substantial ties to Australia.

I suppose that once I was back in, it was all OK, as the PR rights do not expire.
But I also assume that Immigration could refuse entry, and with everything electronic now, it may not be as easy?

 

[CCMS]

I so I just came back in on a tourist visa, the 24 hour process one.

Had an interview at an Immigration office, and all was OK again. Presumably due to substantial ties to Australia.

A tourist visa would replace the existing visa and PR would be gone forever.

I'd lodge a RRV application online and see how you go. Or contact the Embassy/Consulate in the USA and see if they can help speed things up.

As for your other question : https://www.gov.uk/types-of-british-nationality

 

[Kulwant Kumar]

Here is my analysis:

You have PR (which gave you 5 years travel facility). After 5 years you went outside Australia. You still have PR but you are stuck outside Australia as you cannot enter Australia. What can you do?

1. Option 1: Get ETA/ tourist visa (preferably ETA) and enter Australia - but you are now in Australia as tourist. Your PR visa will be gone. That's still OK. You can still apply for RRV. Because for RRV, you need to be "former permanent resident" which you will be. So, the end result is you will be waiting for RRV but you will not be allowed to work (because you will be tourist) until RRV is granted. After RRV is granted the life is back to normal.

2. Option 2 - Apply for RRV, wait for it to be granted. May take some time, may need to adjust the return tickets but as soon as RRV is granted, you will be able to return to Australia, have full work rights and life back to normal

 

[Mania]

Here is my analysis:

You have PR (which gave you 5 years travel facility). After 5 years you went outside Australia. You still have PR but you are stuck outside Australia as you cannot enter Australia. What can you do?

1. Option 1: Get ETA/ tourist visa (preferably ETA) and enter Australia - but you are now in Australia as tourist. Your PR visa will be gone. That's still OK. You can still apply for RRV. Because for RRV, you need to be "former permanent resident" which you will be. So, the end result is you will be waiting for RRV but you will not be allowed to work (because you will be tourist) until RRV is granted. After RRV is granted the life is back to normal.

2. Option 2 - Apply for RRV, wait for it to be granted. May take some time, may need to adjust the return tickets but as soon as RRV is granted, you will be able to return to Australia, have full work rights and life back to normal

Option one is flawed by s2 155.212 & s2 157.212

155.212" (2) The applicant meets the requirements of this subclause if the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:

(a) was:

(i) the holder of a permanent visa or a permanent entry permit; "

157.212" (a) was lawfully present in Australia for a period of, or periods that total, not less than 1 day but less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:

(i) was:

(A) the holder of a permanent visa or a permanent entry permit; "

 

[Kulwant Kumar]

You have copied the Regulation but can you please point out where is the flaw?

Please note:
155.212(1) The applicant meets the requirements of subclause (2), (3), (3A) or (4).

you have just checked clause (2) but not others

 

[Ramah]

1. Option 1: Get ETA/ tourist visa (preferably ETA) and enter Australia - but you are now in Australia as tourist. Your PR visa will be gone. That's still OK. You can still apply for RRV. Because for RRV, you need to be "former permanent resident" which you will be. So, the end result is you will be waiting for RRV but you will not be allowed to work (because you will be tourist) until RRV is granted. After RRV is granted the life is back to normal.

I'm not sure where you're getting your information from, an RMA commented before you saying:

A standard tourist visa would replace the existing visa and PR would be gone forever.

 

[Mania]

You have copied the Regulation but can you please point out where is the flaw?

By holding a non PR sublclass of visa they have given up their PR status and as such no longer comply with:

"the holder of a permanent visa or a permanent entry permit"

 

[Kulwant Kumar]

Hi Ramah. I also mention the same that PR visa will be gone.

 

[Mania]

Hi Ramah. I also mention the same that PR visa will be gone.

And as such will no longer be eligible for a RRV as per the posted legislation...

Either that or I am misunderstanding the legislation and would love to know how it works..

 

[Kulwant Kumar]

Please check 155.212(3A).
They just need to show that they has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia

Which they have to show anyway if they apply for RRV outside Australia (155.212(3)).

Here how it works:
155.211(c) is satisfied - they are former Australian permanent resident
155.212(1) is satisfied because of 155.212(3A)

Is it Clear now?

 

[Mania]

Please check 155.212(3A).
They just need to show that they has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia

Which they have to show anyway if they apply for RRV outside Australia (155.212(3)).

But during that time they still have held a permanent visa for the previous 5 years as the permanent visa doesn't expire. So the offshore applicant would be fine

However by replacing it with a new non permanent visa they no longer comply with the permanent visa for the previous 5 years....so ties or not they don't have the required permanent residency to apply for the RRV?

 

[Kulwant Kumar]

I have given options in my analysis. They can apply for RRV offshore is one of the options.

Regarding your second statement - there is no requirement of currently existing permanent residency to apply for RRV. 155.211(c) states that if you are a former Australian permanent resident you can apply for RRV.

 

[Mania]

I have given options in my analysis. They can apply for RRV offshore is one of the options.

Regarding your second statement - there is no requirement of currently existing permanent residency to apply for RRV. 155.211(c) states that if you are a former Australian permanent resident you can apply for RRV.

Fair enough, my mistake. - beyond my pay grade it seems.

 

[Kulwant Kumar]

I believe i deserve a "like" after this

 

[Mania]

I believe i deserve a "like" after this

I'll give a like if you give a MARN, Id find it hard to believe you don't have one

 

[lightningx]

Just to add, do note if application is based on substantial ties... only 1 year RRV will be granted.

For 5 years RRV, it's very clear that certain types of temporary visa are not allowed. Applying for a tourist visa automatically disqualifies from the 5 years RRV. ETA is allowed though.

In practical terms, I think applying for RRV while having a tourist visa or having had a tourist visa, literally resets the 2 out of 5 year clock to 0 again, even though a one year RRV is subsequently granted. ETA is fine though.

 

[Ramah]

Please check 155.212(3A).
They just need to show that they has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia

Which they have to show anyway if they apply for RRV outside Australia (155.212(3)).

Here how it works:
155.211(c) is satisfied - they are former Australian permanent resident
155.212(1) is satisfied because of 155.212(3A)

Is it Clear now?

155.212
(1) The applicant meets the requirements of subclause (2), (3), (3A) or (4).
(2) The applicant meets the requirements of this subclause if the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:
(a) was:
(i) the holder of a permanent visa or a permanent entry permit; or
(ii) an Australian citizen; and
(b) was not the holder of:
(i) a temporary visa (other than a Subclass 601 (Electronic Travel Authority) visa, a Subclass 773 Border visa, Subclass 956 Electronic Travel Authority (Business Entrant - Long Validity) visa, Subclass 976 Electronic Travel Authority (Visitor) visa or Subclass 977 Electronic Travel Authority (Business Entrant - Short Validity) visa) held concurrently with the permanent visa or the permanent entry permit); or
(ii) a bridging visa.

Doesn't that mean that a visitor visa (temporary) would make the applicant non-eligible for RRV?

In your post you said ETA/visitor visa so I'm referring to this.

CCMS pointed out ETA can work but you stated that a visitor visa could also work.

I'm not an RMA, just curious to know, that's all.