Navigating the “Compelling Reasons” Challenges for Australia’s Resident Return Visa

When an individual is granted an Australian permanent resident visa, they are also granted permission to remain in Australia indefinitely. However, a travel facility also attaches to each permanent visa, allowing the visa holder to travel overseas and subsequently return to Australia for five years from the date of the visa grant.

If a permanent resident is in Australia when the travel facility expires, the permission to remain in Australia indefinitely continues, but if the person departs Australia, they will not be able to re-enter Australia unless they apply for an additional visa. 

In these cases, permanent resident visa holders can apply for a further permanent residency re-entry visa, known as the Resident Return (subclass 155) visa (RRV), which can be issued with a travel facility of up to five years.

If an individual has resided in Australia as a permanent resident for two cumulative years in the last five years before applying, they may be issued with a five-year travel facility. Conversely, if they are unable to satisfy the residence requirement but can demonstrate substantial ties that are of benefit to Australia, they may be issued with a one-year travel facility.

Do I Meet the “Compelling Reasons” Criteria?

If you are an RRV applicant in one of the below categories and have been absent from Australia for an extended period of time, you will need to demonstrate that you have substantial ties of benefit to Australia, as well as compelling reasons for your absence:

• Category 1: You are outside of Australia and either currently hold a permanent residency visa or last departed Australia as a permanent resident or citizen and have been absent from Australia for a continuous period of five years or more immediately prior to lodgement of the RRV application.
• Category 2: You are outside of Australia and no longer have permanent residence status but were a permanent resident or citizen less than 10 years before lodging the RRV application, and have been absent from Australia for a cumulative period of five years or more.
• Category 3: You are in Australia and have been absent from Australia for a continuous period of five years or more since the grant of your most recent permanent visa.

Compelling Circumstances

The term “compelling” is not defined in migration law. Instead, migration policy directs that the ordinary dictionary meaning of the word applies, and implies that reasons for absence should be forceful to the visa applicant.

While there is no technical requirement for the reasons to be beyond the applicant’s control, where this can be demonstrated, it will carry greater weight.

Some policy examples of compelling reasons include:

• Severe illness or death of an overseas family member;
• Professional work or study commitments for the applicant or their partner that will benefit Australia;
• 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 that prevents travel;
• Involvement in legal proceedings such as the sale of property, custody or contractual obligations and the timing was beyond the applicant’s control;
• Being affected by a natural disaster or political uprising preventing the applicant from travel;
• 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. The period of time would have to be reasonable in its context.

Complex Case Study

Fragomen’s legal practitioners and registered migration agents are experienced in standard and complex RRV applications.

Let’s consider an individual who departed Australia shortly after the grant of their permanent residency. The person had two notable periods of absences from Australia stretching out to eight and 11 years respectively, with all subsequent entries being on an alternate temporary visa. Multiple attempts were made to lodge RRV applications but resulted in refusals.

In this example, Fragomen is well-positioned to assist with a review application at the Administrative Appeals Tribunal (AAT), which would require strategically discussing the individual’s reasons for absence and subsequently making the case that, due to a combination of medical and family reasons, each period of absence met the relevant threshold to be considered compelling.

How Fragomen Can Help

If you have been absent from Australia for an extended period, Fragomen can assist in assessing eligibility for an RRV and guide you on the best way for the issue to be addressed while mitigating any risk factors. We can review your circumstances and provide guidance on next steps, including longer-term strategies for Australian citizenship, where possible and appropriate, which negates the need for the monitoring of residence periods in Australia.

Need to Know More?

For any queries on complex issues related to your RRV application, please contact your Fragomen contact.

This blog was published on 12 April 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.