Resident return visas subclass 155 – compelling reasons for absence from Australia

Once you have permanent residency you must after 5 years apply for a subclass 155 Resident Return visa if you leave and want to return to Australia.

To qualify for resident return visas, you must:

• have lived in Australia for 2 years (730 days) in the last 5 years as the holder of a permanent visa (or entry permit), or as an Australian citizen
• be able to demonstrate substantial ties to Australia that are of benefit to Australia

Even if you do not meet the resident requirement, you may still be eligible for this visa if you have substantial business, cultural, employment or personal ties with Australia which are of benefit to the country and

• you are offshore and you have not been absent from Australia for a continuous period of 5 years or more before the application unless there are compelling reasons for the absence and you hold a permanent visa or last departed Australia as the holder of a permanent visa or as an Australian citizen who subsequently lost or renounced Australian citizenship,
• you are offshore and you were an Australian citizen or permanent resident at some point in the last 10 years and have not been absent from Australia for a period or periods that total more than 5 years in the period from the date that you last departed Australia as an Australian citizen or permanent resident to the date of the application unless there are compelling reasons, or
• you are onshore and you have not been absent from Australia for a continuous period of 5 years or more since the date of your most recent permanent visa or the date when you ceased to hold Australian citizenship unless there are compelling reasons.

In this article we are going to examine what are compelling reasons for any continuous or cumulative absence of 5 years or more since you last departed Australia.

When the Department of Home Affairs (Department) considers an application on the basis of compelling reasons it will look at such matters as:

• severe illness or death of an overseas family member;
• work or study commitments by the applicant or their partner that are of a professional nature, in circumstances where the acquired experience results in a benefit to Australia;
• the applicant is living overseas in an ongoing relationship with an Australian citizen partner;
• the applicant or the applicant’s accompanying family members have been receiving complex or lengthy medical treatment preventing travel;
• the applicant has been involved in legal proceedings such as sale of property, custody, or contractual obligations and the timing was beyond the applicant’s control;
• the applicant has been caught up in a natural disaster, political uprising or other similar event preventing them from travel; or
• the applicant can demonstrate they have been waiting for a significant personal event to occur that has prevented them from relocating to or returning to Australia.

Whilst the Department does look at the matters outlined above it is important to note that the Court when considering this expression in Paduano v MIMIA 143 FCR 204 held that the expression ‘compelling reasons for the absence’ refers to the applicant’s absence and it is the applicant who must have been ‘compelled’ by the reasons for his absence.

It is for the Tribunal, therefore, to make a judgment as to whether the reasons for the absence are forceful (and therefore convincing) by reference to some standard of reasonableness such as a reasonable person in the same circumstances as the applicant (as opposed to the Tribunal having to ‘be compelled’ by the compelling reasons).

Preparing applications where the Department must consider compelling reasons can often be very technical and it is important to ensure as much details has been included for the reasons for the absence. At FC Lawyers we have assisted numerous clients with these types of applications.

Call or contact our expert team for a consultation regarding your resident return visas.