Jane Goddard, Special Counsel, Sydney
Assisting staff with their career development through overseas placements is just one of the many responsibilities human resources manage on a daily basis. The removal of the living away from home tax concession in October 2012 has increased the attraction of employer sponsored permanent residence for many temporary visa holders. While this transition is a well-trodden and typically, well planned pathway, retaining the right to return to Australia in subsequent years can prove more challenging.
The latest hurdle is the new rules for resident return visas. Introduced in July 2012, these add a new item to the forward-planning list for permanent residents who want to retain their right to return to Australia when they choose. This is especially crucial for Australian permanent residents who travel or even live overseas, or if your business employs permanent residents who are overseas for long periods.
Do your staff have the right to return?
The advent of new rules for resident return visas in July 2012 adds an additional item to the long term planning list for permanent residents wishing to maintain that status. As human resources professionals, it's important to be aware of these changes as they can have an impact on relocating permanent resident staff overseas for long periods.
One of the assets of Australian citizenship, along with voting, is the right to return to Australia regardless of the time spent abroad. This right cannot be removed unless the citizen has committed a crime related to obtaining status in Australia, or agrees to its surrender. An Australian passport can be cancelled, but typically this power is used to keep a person in Australia so to prevent the commission of an overseas crime.
Unlike Australian citizens, who have the right to return to Australia at any time regardless of time spend aboard, permanent residents must maintain their right to travel to Australia and be permitted to pass through immigration control – technically known as re-entering. When a permanent visa is first granted, this right extends for five years. However, the ability to extend this re-entry right is dependent on the individual spending two years physically present in Australia in the five years before a further visa application (known as a resident return visa, or RRV), in which case a further five year return visa is granted. Provided this period of residence is maintained, permanent visa holders are able to renew their right to re-enter Australia indefinitely.
If the right to return ceases while they are in Australia, the right to remain in Australia does not, so your permanent resident employees can continue living in Australia happily and lawfully. If, however, they then leave the country without obtaining permission to re-enter, they will lose permanent residence status until they are granted a further resident return visa.
Not a permanent resident?
In the absence of meeting the residence requirement, a resident return visa can be obtained if the individual has “substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia”. Policy changes which were introduced in early 2012 and re-enforced by legislation mid-year reduced the re-entry period for visas granted on this basis from five years to one. Although announced under the guise of a revenue raising measure in the mini budget at the end of 2011, this change amounts to a significant curtailment of the freedom of permanent visa holders to live for extended periods overseas without jeopardising their Australian residence.
In our experience the Department of Immigration and Citizenship (DIAC) case officers assessing these concessional RRV applications expect the existence of claimed ties will be fully documented. If a permanent resident makes an application on the basis of personal ties (for example – Australian family members, property and/or assets), they may be asked to indicate when and how they will be permanently returning to Australia. The existence of these ties, and a commitment to resume permanent residence, will be assessed annually until they can show two years of physical residence in the previous five years.
Is citizenship an option?
Clearly, one way for permanent residents to avoid future uncertainty is to obtain Australian citizenship. But there are pitfalls associated with this, particularly since the introduction of the Citizenship Act in 2007. Now an intending citizen must be physically present in Australia for at least four years (previously two years) immediately prior to the application for citizenship. The final 12 months, at least, must be as a permanent resident with the remainder being either as the holder of a temporary or permanent visa. A total of 12 months physically overseas (of which no more than 90 days can occur in the final year preceding application) during the four year period is permissible. If the 12 months of absence is exceeded, then the clock is reset and the four years must be accumulated all over again.
This can be a struggle for many, particularly employees of multinational organisations that encourage international assignments for career development and staff retention. Although the former Citizenship Act allowed for flexibility in meeting the residence requirement for applicants engaged in overseas activities that benefited Australia, the current Act largely limits this to individuals who must be Australian citizens competing for Australia at the Olympics or employed at a senior level as a public servant.
The only other exception to the residence requirement for citizenship relates to partners of Australian citizens who can count time spent overseas towards their four years provided that, at all times, he or she maintains a close and continuing association with Australia. Recent cases in the Administrative Appeals Tribunal have interpreted this provision quite strictly. For example, in Kelaart and Minister for Immigration and Citizenship  AATA 849 (3 December 2012) the tribunal held that Australian residence of the applicant’s spouse and adult children did not amount to a “close and continuing association."
Vigilance is the answer
In effect; the combination of less flexible RRV rules and the more stringent requirements for Australian citizenship increases the likelihood that someone will lose their right to return to Australia. In these circumstances, the only option is to reapply for permanent residence again – provided of course that the individual can meet the rules for a permanent visa. Now, more than ever, vigilance is needed to ensure that the right to return to Australia is maintained.
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